On Point blog, page 37 of 214
Voir dire questions by prosecutor that elicited promise to convict if elements were proven did not deny right to jury trial
State v. Frank M. Zdzieblowski, 2014 WI App 130; case activity
The prosecutor during voir dire elicited a promise from prospective jurors that they would convict if the State proved the elements of the charged crimes beyond a reasonable doubt, and then reminded the jurors of that promise in his rebuttal closing argument. The court of appeals holds the prosecutor’s unobjected-to voir dire questioning and rebuttal closing argument neither rose to the level of plain error nor warranted a new trial in the interest of justice.
Defendant made sufficient showing for in camera review of complainant’s mental health records under Shiffra/Green
State v. Patrick J. Lynch, 2015 WI App 2, petition for review granted 3/16/15, affirmed by a divided court, 2016 WI 66; case activity
Lynch was entitled to an in camera review of the complainant’s treatment records because there is a reasonable likelihood the records will reveal the complainant exhibits ongoing symptoms associated with PTSD that affect her ability to recall and describe pertinent events, and that she failed to report Lynch’s alleged sexual abuse of her to treatment providers, at least as a child.
Lack of clear definition of “crimes involving moral turpitude” scuttles Padilla plea withdrawal claim
State v. Fernando Ortiz-Mondragon, 2014 WI App 114, petition for review granted 12/18/14, affirmed, 2015 WI 73; case activity
Ortiz-Mondragon’s trial counsel wasn’t ineffective under Padilla v. Kentucky, 559 U.S. 356 (2010), for failing to advise Ortiz-Mondragon that his convictions were “crimes involving moral turpitude” (CIMT) and would result in mandatory deportation and a permanent bar on reentry. Unlike the conviction in Padilla, CIMT is a “broad classification of crimes” that escapes precise definition, and there’s no clear authority indicating any of the crimes to which Ortiz-Mondragon pled were crimes of moral turpitude. Thus, the deportation consequences of Ortiz-Mondragon’s plea was unclear and uncertain, and his attorney wasn’t deficient in failing to unequivocally inform him that his plea would result in deportation and inadmissibility.
Court of Appeals drains more meaning from the word “exigency”
State v. Joel I.-N., 2014 WI App 119; case activity
The unrecorded statement Joel I.N., a juvenile, gave to the police was admissible despite the fact the police failed to record the statement as required by §§ 983.195(2)(b) and 938.31(3)(b) because “exigent public safety circumstances” rendered recording his statement infeasible under § 938.31(3)(c)5. Joel also knowingly, intelligently, and voluntarily waived his right to remain silent.
“Castle doctrine” only applies when the intruder is in your castle
State v. Charles L. Chew, 2014 WI App 116; case activity
In its first decision addressing Wisconsin’s recently adopted “castle doctrine,” § 939.48(1m), the court of appeals holds Chew wasn’t entitled to a self-defense jury instruction under the statute because the men Chew shot at were not “in” his “dwelling.”
Warrant invalidated because primary basis consisted of information the police garthered by trespassing
State v. Jeremiah R. Popp & Christopher A. Thomas, 2014 WI App 100; case activity: Popp; Thomas
The search warrant for the home shared by Popp and Thomas was invalid because the primary basis for the warrant was derived from observations made by police when they trespassed on the defendants’ property and peered into their windows.
Prison visitor subjected to custodial interrogation in violation of Miranda, but physical evidence not suppressed
State v. Marie A. Ezell, 2014 WI App 101; case actvity
Prison guards overheard Ezell tell her incarcerated boyfriend that she would smuggle in drugs for him on her next visit. When she tried to follow through, the guards detained her in a conference room, questioned her, and obtained damning evidence. Due to the lack of Miranda warnings, this custodial interrogation violated the 5th Amendment, but the court nevertheless declined to suppress the physical evidence derived from the Miranda violations.
Court scolds State for shoddy advocacy, holds alleged “stop” was actually an arrest without probable cause
State v. Thomas J. Anker, 2014 WI App 107; case activity
If a conservation warden shouted “you’re under arrest,” ordered you to stop walking, forcibly handcuffed you, and restrained you in his car until he could turn you over to investigating authorities, would you think you were under arrest or simply “temporarily detained”? The State, with a straight face, claimed these facts showed a Terry stop. The court of appeals, with a stern tone, rebuked the State and sharply criticized its brief.
Defendant allowed dual credit for presentence custody served for a burglary and an unrelated civil commitment
State v. Joseph T. Trepanier, 2014 WI App 105; case activity
This case presents an issue of first impression: Whether a defendant is entitled to sentence credit for time spent in presentence custody for a burglary when he was also in custody pursuant to an unrelated civil commitment for contempt of court. The State, naturally, opposed dual sentence credit. But the winner is . . . the defendant!
Postconviction counsel may raise defendant’s competence to stand trial though trial court and trial counsel had no such concerns
State v. Jimmie Lee Smith, 2014 WI App 98, petition for review granted 6/12/15; case activity
If you’re working on a competency issue, read this decision. Neither the trial court nor defense counsel raised the subject of Smith’s competency at the time of trial. And Smith had not received a pre-trial competency exam. That’s why the postconviction court rejected Smith’s claim that he was incompetent at the time of trial. There was no contemporaneous evidence to support it. The court of appeals reversed, vacated the conviction, and remanded the case for a new trial.