On Point blog, page 9 of 214
May 2022 publication order
On May 25, 2022, the court of appeals ordered publication of the following criminal law related decisions:
Merging clearer audio recorded on separate device with video of child’s statement didn’t make recording inadmissible
State v. Joseph M. Marks, 2022 WI App 20; case activity (including briefs)
Given the facts in this case, the court of appeals rejects the defendant’s claim that an audiovisual recording of a child’s statement was inadmissible under § 908.08 because investigators merged a separate audio file of the interview with the video to correct a problem with the original audio.
April 2022 publication order
On April 28, 2022, the court of appeals ordered publication of the following criminal law related decisions:
COA: though you can’t intend a reckless homicide, you can intend reckless endangerment
State v. Antonio Darnell Mays, 2022 WI App 24; case activity (including briefs)
Mays was accused of forcing his way into an apartment with and firing a gun at at least one of its occupants. One occupant fired back; in the end, two people were dead. The state initially charged Mays with, among other things, a reckless homicide for each of the deaths. But when, at trial, the evidence suggested that one of the decedents had been shot not by Mays, but by the occupant returning fire at Mays, the state moved to amend the information as to that death to charge felony murder instead. Mays opposed the amendment, and ultimately the state instead convinced the court to instruct the jury on felony murder as a lesser-included offense of reckless homicide. The jury convicted Mays of this lesser-included (and other counts).
Court of Appeals addresses successive postconviction motion, judge’s use of written rather than oral sentencing rationale
State v. Hajji Y. McReynolds, 2022 WI App 25; case activity (including briefs)
This decision addresses: 1) the propriety of successive postconviction motions; 2) a claim that trial counsel was ineffective for failing to object to testimony vouching for the credibility of another witness and to improper character evidence; and 3) the novel issue of the sentencing judge’s use of a written rather than oral explanation of its sentencing rationale under § 973.017(10m)(b).
March 2022 publication order
On March 30, 2022, the court of appeals ordered publication of the following criminal law related decisions:
Defense win! Warrantless entry into hotel room violated the 4th Amendment
State v. Eric D. Bourgeois, 2022 WI App 18; case activity (including briefs)
Police went looking for Bourgeois at a hotel because he might have been in possession of stolen handgun, he had PTSD, and he had a drug problem. At 2:00 a.m., despite a “do not disturb” sign, 3 officers tried to enter his room unannounced first using a key card and then a master key. Due to the chain lock, they could only peek through but they saw that Bourgeois alone and unarmed He declined to let them in and turned away. Claiming exigent circumstances, police busted through the hotel door.
Defense win! COA limits DOC withholdings from prison wages to pay restitution
Victor Ortiz, Jr. v. Kevin A. Carr, 2022 WI App 16; case activity (including briefs)
Attorneys Jason Luczak and Jorge Fragoso of Gimbel, Reilly, Geurin & Brown generously took this case pro bono. And now Jorge offers this guest post on their defense win:
Prison inmate (and hero to institutionalized persons) Victor Ortiz filed a petition for writ of certiorari seeking to limit the percentage of his income diverted for the payment of restitution. He won. The court of appeals ordered the Department of Corrections to limit its withholdings to 25% of Ortiz’s wages, half of what the Department sought.
Defense win! COA holds failure to investigate prior false allegation was ineffective
State v. Shane Allan Stroik, 2022 WI App 11; case activity (including briefs)
A jury convicted Stroik of the sexual assault of a then-five-year old girl, “Amy,” the daughter of his girlfriend. Postconviction, Stroik brought a slew of claims for a new trial; the circuit court rejected them all. The court of appeals now holds that trial counsel performed deficiently in not obtaining a report from child protective services detailing an accusation Amy had made about her cousin a few months before she accused Stroik–an accusation about an assault quite similar in its details to the one she would later say Stroik committed. The court also finds a reasonable probability that this evidence would have resulted in an acquittal, and thus grants Stroik a new trial.
Defense win! Riding a bike at night doesn’t suggest criminal activity
State v. Jere J. Meddaugh, 2022 WI App 12; case activity (including briefs)
Wearing black clothing and riding a bicycle across publicly accessible school grounds in the middle of the night while a Safer at Home order is in effect does not constitute reasonable suspicion that a crime is being committed. So says the court of appeals in a decision that is recommended for publication.