On Point blog, page 85 of 484
COA: Mother’s CHIPS petition properly granted
State v. M.A., 2019AP1089, 7/14/20, District 1 (one-judge decision; ineligible for publication); case activity
M.A.’s son J.A. was the subject of several delinquency petitions; each was converted to a JIPS proceeding because J.A. was not competent. See Wis. Stat. § 938.13(14). Eventually, M.A. filed a CHIPS petition in an apparent attempt to alter the constellation of services available to J.A. The state fought the petition and lost, and continued its fight on appeal. Per the court, though the state alleges five different errors, they all generally boil down to the same argument–that M.A. didn’t identify any particular services a CHIPS finding would provide that were not already available to her. The court rejects all five flavors of the state’s complaint and affirms the circuit court’s grant of the petition.
COA gives lengthy gloss on Mitchell v. Wisconsin, affirms conviction
State v. Donnie Gene Richards, 2020 WI App 48; case activity (including briefs)
Richards was found lapsing in and out of consciousness and severely injured behind the wheel of a crashed vehicle. There was evidence he was intoxicated, and he would soon be transported to a distant hospital by helicopter. Believing there wasn’t enough time to get a warrant by this time, the officer on scene requested that Richards’s blood be drawn before the flight, and it was.
Defense win: state breached plea by asking for more prison than it had agreed to
State v. Desmond Myers LaPean, 2019AP1448, 7/14/20, District 3 (not recommended for publication); case activity (including briefs)
LaPean pleaded to a sexual assault of a child with an agreement that the state would cap its recommendation at 10 years of initial confinement and 10 of extended supervision. But at sentencing, the state first recommended 12 and 12. After defense counsel’s objection, the state instead requested 10 and 14. Counsel didn’t notice the second breach, but the prosecutor eventually did, telling the court the agreement was for 10 and 10. The court gave 12 and 10.
Seizure of cell phone was lawful; admission of other acts evidence was appropriate
State v. Samuel L. Nichols, Jr., 2019AP802-CR, District 4, 7/16/20 (not recommended for publication); case activity (including briefs)
Nichols was charged with capturing images of nudity without consent and sexual assault. He argues the police didn’t have probable cause to seize his cell phone and therefore the images they found on it must be suppressed. He also asserts other-acts evidence was erroneously admitted at his trial. The court of appeals rejects both claims.
Expert testimony provided sufficient evidence of dangerousness at ch. 51 extension hearing
Fond du Lac County v. S.N.W., 2020AP274-FT, District 2, 7/15/20 (one-judge decision; ineligible for publication), petition for review granted 11/19/20; case activity
The testimony of the county’s expert provided sufficient evidence of dangerousness under § 51.20(1)(a)2.b. and (1)(am).
Challenges to TPR rejected
Racine County HSD v. S.M.F., 2019AP2346 & 2019AP2347, District 2, 7/15/20 (one-judge decision; ineligible for publication); case activity
S.M.F.’s challenges the order terminating her parental rights, alleging trial counsel was ineffective and that the circuit court should have granted her mistrial motion. The court of appeals affirms.
Defense win in unusual self-defense homicide case
State v. Alan M. Johnson, 2020 WI App 50, state’s petition for review granted, 9/16/20, affirmed in part, reversed in part, 2021 WI 61; case activity (including briefs)
Johnson killed his brother-in-law, K.M., while he was in K.M.’s house, uninvited, to look to see whether K.M. had child porn on his computer. The court of appeals orders a new trial for Johnson because the trial court erred in denying Johnson’s perfect self-defense instruction and lesser-included offense instruction and in excluding evidence that there was, in fact, child porn on K.M.’s computer.
No harm where the defendant’s lawyer was also the judge who bound him over for trial
State v. Keith C. Henyard, 2020 WI App 51; case activity (including briefs)
The State charged Henyard with 8 crimes potentially leading to 157 years in prison. Commissioner Parise engaged Henyard in a colloquy, accepted his waiver of a preliminary hearing, and bound him over for trial. Parise left the bench and 5 months later sold his professional services to Henyard to get him a better deal. The majority denied Henyard’s ineffective assistance of counsel claim for lack of a prejudicial “actual conflict of interest.” Judge Reilly, in another Emperor’s New Clothes moment, dissented expressing concern about the integrity of a judiciary that obscures errors and shifts blame to defendants.
Officer had probable cause for OWI arrest based on circumstantial evidence
State v. Brandon Daniel Mulvenna, 201AP2341-CR, 7/9/20, District 4 , (1-judge opinion, ineligible for publication); case activity (including briefs)
Mulvenna wasn’t operating his motorcycle when an officer, responding to a call, arrived to find him trying to lift it while it was facing south on a northbound only roadway. Mulvenna had bloodshot eyes and slurred speech and smelled of alcohol. He refused field sobriety tests, so the officer cuffed him and placed him in the back of his squad car. The sole issue is whether the officer had probable cause for the arrest. The court of appeals answered “yes,” and noted some appellate rules violations.
Defense win – no exigency justified warrantless blood draw
State v. David M. Hay, 2020 WI App 35; case activity (including briefs)
Hay was pulled over in the early morning and blew a .032 on the PBT. He had several drunk-driving priors, so it would be illegal for him to drive with a BAC over .02. The officer never sought a warrant; instead he searched the car (though another officer on-scene could have done that), waited for another officer to show up to “sit” with the vehicle until a tow truck came, then headed to the hospital with Hay. Only then–about an hour after the initial stop–did the officer ask Hay whether he’d agree to a blood test. When Hay refused, the officer, in consultation with an ADA, decided the situation was exigent. The thinking was that given the low PBT result, further passage of time might reduce Hay’s BAC to .00 thus and make a blood test useless as evidence. So, the officer ordered a warrantless blood draw. Because there was only one phlebotomist in the hospital, that draw didn’t actually happen until 35 minutes had passed. Hay had no alcohol in his blood, but there was cocaine, so he was charged with the “restricted controlled substance” variety of OWI. He moved for suppression, the circuit court granted it, and the state appealed.