On Point: 46. WI Court of Appeals

On October 29, 2020, the court of appeals ordered the publication of the following criminal law related opinions:

State v. William Lawrence Bonfiglio, 2019AP188-CR, District 4, 10/22/20 (one-judge decision; ineligible for publication); case activity (including briefs)

Police immobilized Bonfiglio because they thought he was going to resist the blood draw authorized under the search warrant they had obtained. The court of appeals rejects Bonfiglio’s claims this constituted an unreasonable execution of the warrant.

State v. Nathan J. Friar, 2019AP1578-CR, District 4, 10/22/20 (not recommended for publication); case activity (including briefs)

Friar challenges his conviction for sexual assault by use of force, claiming the circuit court erroneously admitted certain evidence and that his trial lawyer was ineffective. The court of appeals rejects his challenges.

Columbia County v. J.M.C., Jr., 2020AP1001, District 4, 10/22/20 (1-judge opinion, ineligible for publication); case activity

J.M.C. was taken to jail on possible criminal charges. Two days later, the County filed a Chapter 51 petition for his commitment.  Section 51.20(7) provides that the circuit court must hold a probable cause hearing within 72 hours of taking a person into custody under §51.20.  The circuit court dismissed the petition for violation of the 72-hour rule, and the County appealed arguing that the circuit court erred in determining what triggered 72-hour clock triggered.

State v. George Steven Burch, 2019AP404-CR, District 3 (10/20/20), review granted 11/18/20, circuit court judgment affirmed, 2021 WI 68; case activity (including briefs)

Burch … contends the [Green Bay Police Department] and the [Brown County Sheriff’s Office] violated his Fourth Amendment rights in three ways: (1) the GBPD exceeded the scope of his consent to search his cell phone by downloading the phone’s entire contents, rather than only the text messages; (2) the GBPD unlawfully retained the entire cell phone download after it completed its June 2016 investigation into the vehicle incidents; and (3) the BCSO had no lawful authority to conduct a second search of the cell phone download in August 2016. Because these issues raise novel questions regarding the application of Fourth Amendment jurisprudence to the vast array of digital information contained in modern cell phones, we certify this appeal to the Wisconsin Supreme Court.

Village of Lomira v. Phillip N. Benninghoff, 2020AP31, District 4, 10/15/20 (one-judge decision; ineligible for publication); case activity (including briefs)

Benninghoff tries to raise a bevy of challenges to the implied consent law and to the revocation of his driving privileges for refusing a blood draw. His challenges are forfeited because he failed to file a timely request for a refusal hearing and, in any event, the arguments aren’t suitably developed or are foreclosed by State v. Levanduski, 2020 WI App 53.

Racine County DHS v. W.L.J., 2020AP197-198, October 14, 2020, District 2 (1-judge opinion, ineligible for publication); case activity

Good news for defense lawyers in TPR cases. The court of appeals means business. This is the third time in less than a year that it has reversed a termination of parental rights order due to a circuit court error on the question of whether a parent “abandoned” his or her child.

State v. Michael J. Pierquet, 2009AP2099-Cr, 10/14/20, District 2, (1-judge opinion, ineligible for publication); case activity (including briefs)

A jury convicted Pierquet of operating a motor vehicle with a Prohibited Alcohol Content. He argued that the circuit court erred in admitting the results of his blood test and in giving them prima facie effect because the State failed to prove that the analyst who performed the test possessed a valid permit for alcohol testing. The court of appeals disagreed because an employee of the State Lab of Hygiene testified that all of the analysts at the Lab hold a valid alcohol analysis issued by the state.

State v. C.A.A., 2020AP1194, District 1, 10/13/20 (one-judge decision; ineligible for publication); case activity

At the trial on the petition to terminate C.A.A.’s parental rights, the case manager handling the CHIPS case pertaining to C.A.A.’s child testified that, in her opinion, C.A.A. would not likely satisfy the conditions of return under the CHIPS order within the 9-month period prescribed by § 48.415(2)(a)3. (2015-16) (a requirement eliminated by 2017 Wis. Act 256). (¶6 & ¶9 n.3). The court of appeals holds this was admissible lay opinion testimony.

State v. Manuel Garcia, 2020 WI App 71, petition to review granted, 1/20/21, affirmed by an evenly divided court, 2021 WI 76; case activity (including briefs)

Even if a court suppresses a defendant’s voluntary statement because it was obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), the state may use the statement to impeach the defendant if he or she elects to testify. Harris v. New York, 401 U.S. 222 (1971); James v. Illinois, 493 U.S. 307 (1990). The issue in this case is whether this “impeachment exception” allows the state to use the defendant’s statement  to “rehabilitate” one of its witnesses. The court of appeals holds it does not: the state may use an illegally obtained statement only to impeach the defendant’s testimony.