On Point blog, page 35 of 217
Counsel ineffective; failed to challenge credibility in swearing contest
State v. Rafael D. Honig, 2016 WI App 10; case activity (including briefs)
Honig, convicted at trial of two first-degree child sexual assaults, asserts that his trial counsel mishandled three issues bearing on the credibility of his accusers; the court of appeals agrees.
Evidence sufficient to prove robbed bank was “chartered”
State v. James Lee Eady, Jr., 2016 WI App 12; case activity (including briefs)
Under the forgiving standard for assessing the sufficiency of evidence, the state managed to introduce enough circumstantial evidence to prove that the bank Eady robbed was “chartered” by a state of the federal government, and therefore was a “financial institution” for purposes of § 943.87.
Social worker’s testimony about behavior of child abuse victims passes Daubert
State v. Larry J. Smith, 2016 WI App 8; case activity
Ordinarily, “the third time’s a charm.” But here, with its third decision rejecting a Daubert challenge to expert testimony, the court of appeals triple underscores just how flexible the test really is. The decision also addresses a vouching issue.
Defendant not entitled to credit for custody in another case that was considered at sentencing
State v. David Aaron Piggue, Jr., 2016 WI App 13; case activity (including briefs)
Under State v. Floyd, 2000 WI 14, 232 Wis. 2d 767, ¶¶14-18, 25-27, 606 N.W.2d 155, a defendant is entitled to sentence credit for time in custody on charges that are dismissed and read-in for sentencing purposes. The court of appeals declines to extend Floyd to require credit for time the defendant was in custody on a charge for which he was acquitted, even though the acquitted conduct is used by a judge to fashion a sentence for a different crime.
Confrontation Clause doesn’t apply to suppression hearings
State v. Glenn T. Zamzow, 2016 WI App 7, petition for review granted, 3/7/16, affirmed, 2017 WI 29; case activity (including briefs)
Relying on precedent predating Crawford v. Washington, 541 U.S. 36 (2004), two judges of the court of appeals hold that the Confrontation Clause does not apply to suppression hearings and that the circuit court could rely on hearsay evidence in denying Zamzow’s motion to suppress. The third judge on the panel dissents, arguing the majority’s conclusion “rests upon a shaky foundation” (¶20) and “continues [the] unfortunate legacy” of pre-Crawford Confrontation Clause jurisprudence (¶23).
Statute prohibiting switchblades doesn’t apply to possession by a person at home
State v. Cory S. Herrmann, 2015 WI App 97; case activity (including briefs)
In light of the Second Amendment decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), Wisconsin’s prohibition on the possession of a switchblade knife, § 941.24(1), is unconstitutional as applied to a person who possesses a switchblade in his or her own home.
Expunction: Not quite the “fresh start” that Hemp advertised
State v. Christopher Joseph Allen, 2015 WI App 96, petition for review granted 4/7/16, affirmed, 2017 WI 7; case activity (including briefs)
How often does SCOW issue unanimous decisions for the defense these days? Not too often. So you’d think that after being reversed 7-0 in State v. Hemp, District 1 might approach §973.015, with a “once bitten, twice shy” mindset. But with this published decision, D1 seems more determined to rein in Wisconsin’s expunction statute.
E pluribus unum: Court of Appeals addresses notice, unanimity, venue and statute of limitations issues arising from charging multiple thefts in a single count
State v. Jeffrey L. Elverman, 2015 WI App 91; case activity (including state’s brief)
The court rejects all challenges to a conviction of theft of more than $10,000. The issues mostly spring from the state’s use of Wis. Stat. § 971.36(4), which permits, under certain circumstances, the aggregation of multiple thefts into a single count.
Inmates serving bifurcated sentence for a misdemeanor may petition for sentence adjustment
State v. Jamie R. Anderson, 2015 WI App 92; case activity (including briefs)
Answering a question lingering since the Truth-in-Sentencing revisions that took effect in 2003 (TIS-II), the court of appeals holds that a person serving a bifurcated prison sentence for a misdemeanor enhanced under the repeater statute, § 939.62(1)(a), is eligible to petition for a sentence adjustment under § 973.195 after serving 75% of the confinement portion of the sentence.
Court lost competency to decide constitutional challenge to statute due to failure to notify AG of challenge
S.R. v. Circuit Court for Winnebago County, 2015 WI App 98; case activity
Because S.R. and C.L.’s “petition for determination of parentage” effectively asked the circuit court for a declaratory judgment about the meaning of Wisconsin’s parentage statutes in light of the cases holding that same-sex couples have a constitutional right to marry, the petition should have been served on the Attorney General. Because that didn’t happen, the circuit court lacked the competency to decide the petition.