On Point blog, page 30 of 214

State barred from amending OWI charge from felony to misdemeanor

State v. Brian R. Corvino, 2016 WI App 52; case activity (including briefs)

This decision examines § 967.055(2)(a), which requires the State to apply to the circuit court before amending an OWI charge. The court of appeals found that amending the charge here would be inconsistent with the public policy of deterring drunk-driving and held that the circuit court had the inherent authority to order the State to file an Information charging Corvino’s 4th OWI as a felony.

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Failure to object precludes Daubert analysis; expert on cell phone tracking per se admissible

State v. Robert Lavern Cameron, 2016 WI App 54; case activity (including briefs)

This decision feels like an encounter with a swarm of mosquitoes on a pleasant summer evening. But because it is recommended for publication, you can’t just swat it away. Indeed, the court of appeals’ analysis of the issues will leave you reaching for a bottle of the calamine lotion.

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Logic dictates that invalid blood test results aren’t per se inadmissible at OWI trials

State v. Keith A. Wiedmeyer, 2016 WI App 46; case activity (including briefs)

In an impressive of feat of judicial activism, the court of appeals here rewrites §343.305(5)(d) and (6)(a) and defies precedent to achieve its desired outcome: the admission of statutorily invalid blood test results at OWI trials. On Point looks forward to SCOW’s take on this published court of appeals decision.

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“Im finna have to go on da run smh” is obviously incriminating

State v. Mario Martinez Redmond, 2015AP657-2015AP658-CR, 5/17/16, District 1 (not recommended for publication); case activity (including briefs)

Redmond was charged and convicted of battery, disorderly conduct, and multiple counts of witness intimidation. His appeal raised various ineffective assistance of counsel and other claims. But the most interesting issue concerns Redmond’s failed motion to suppress a cryptic text message sent from his phone.

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Defendant not in Miranda custody during search of home

State v. Bradley L. Kilgore, 2016 WI App 47; case activity (including briefs)

The execution of the search warrant at Kilgore’s home started with a heavily armed officers, including a SWAT team, entering and putting Kilgore down on the floor at gunpoint; but once the home was “cleared” and weapons were secured and the SWAT team left, Kilgore was not in custody for Miranda purposes. Thus, the statements he made to police while they searched his home were admissible despite the lack of a Miranda warning.

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Instructing jury on wrong law requires new trial

State v. Michael W. Bryzek, 2016 WI App 48; case activity (including briefs)

Bryzek had already completed most of his alleged acts when a 2010 statute broadened the definition of theft by a bailee; the court of appeals agrees with the circuit court that the jury should have been instructed on the narrower element.

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Privilege re: desire to shoot victim waived by statement of desire to shoot self

State v. Daniel L. Schmidt, 2016 WI App 45; case activity (including briefs)

The court of appeals rejects three challenges to Schmidt’s jury-trial conviction of two homicides.

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Dismissal of felon-in-possession charge doesn’t bar new charge under different provision of § 941.29

State v. Joshua Java Berry, 2016 WI App 40; case activity (including briefs)

Berry was found guilty at a bench trial of being a felon in possession of a firearm under § 941.29(2)(a) (2013-14). Before sentencing, Berry’s lawyer figured out that Berry’s prior conviction was for a misdemeanor, not a felony. The court vacated the felon-in-possession conviction and dismissed the charge with prejudice, and the state immediately recharged him under § 941.29(2)(b) (2013-14) because Berry had a prior delinquency adjudication. (¶¶2-6). Recharging him doesn’t violate the prohibition against double jeopardy.

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Retrial barred because there was no manifest necessity for mistrial

State v. Russell C. Troka, 2016 WI App 35; case activity (including briefs)

Because the record does not reflect an adequate basis for a finding of manifest necessity warranting a mistrial over Troka’s objection, retrying Troka would violate his right against double jeopardy.

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5-6 sleepovers per week + 2 baskets of laundry = “resides” for purposes of domestic abuse surcharge law

State v. Donald Weso, 2015AP1004-Cr, 4/19/16, District 3 (1-judge opinion; ineligible for publication); case activity (including briefs)

This unpublished opinion appears to decide an issue of first impression for Wisconsin. Section 973.055(1) requires a court to impose a $100 surcharge if it finds that an adult convicted of domestic abuse committed the act “against an adult with whom [he] resides. ” The novel question is: what does “resides” mean? The answer is only a little more involved than the title to this post suggests.

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