On Point blog, page 3 of 4
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.
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.
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.
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.
Drug recognition evaluator passes Daubert test for admissibility of expert testimony
State v. Andrew G. Chitwood, 2016 WI App 36; case activity (including briefs)
In theory, Wisconsin’s new test for the admissibility of expert testimony “is flexible but has teeth.” State v. Giese, ¶19. In practice, it’s flexible and has dentures. Literally every Daubert challenge litigated on appeal since Wis. Stat. §907.02 became effective has failed. The court of appeals has held that expert testimony regarding the retrograde extrapolation of a person’s blood alcohol concentration passes Daubert (See Giese). So does a doctor’s testimony based solely on his personal experience with prenatal and delivery case (see Seifert). So does a social worker’s testimony based solely on her observations of behavior in child abuse victims (see Smith). And now with Chitwood so does expert testimony by a drug recognition evaluator.
Sheriff Clarke ordered to produce unredacted immigration detainer forms
Voces De La Frontera, Inc. v. David A. Clarke, Jr., 2016 WI App 39, petition for review granted 6/15/16, reversed, 2017 WI 16; case activity (including briefs)
Voces De La Frontera submitted an open records request for all immigration detainer forms that Sheriff David Clarke received during a 15-month period. Clarke supplied the forms but redacted 5 categories of information from them, including the person’s nationality and immigration status. So Voces sought, and received, a circuit court writ of mandamus ordering Clarke to produce the records. The court of appeals here affirms that writ.
Testimony that 90% of child sexual assault reports are true didn’t clearly vouch for victim’s credibility
State v. Esequiel Morales-Pedrosa, 2016 WI App 38; case activity (including briefs)
The case law prohibiting vouching by one witness for the credibility of another witness didn’t clearly cover a forensic interviewer’s testimony that 90% of child sexual assault reports are true. Thus, trial counsel wasn’t deficient for failing to object to the testimony.
Court of Appeals clarifies standards for postconviction DNA testing
State v. Jeffrey C. Denny, 2016 WI App 27, petition for review granted 6/15/16, overruled, 2017 WI 17; case activity (including briefs)
If you are thinking about filing a motion under § 974.07 or are in the middle of litigating such a motion, you’ll want to read this decision. The court of appeals holds Denny is entitled to DNA testing of certain evidence because he showed that the items he sought to test are “relevant to the investigation or prosecution that resulted in [his] conviction….” The court also holds he is entitled to testing at public expense because it is reasonably probable he would not have been convicted if exculpatory DNA testing results had been available at the time of his conviction.
Counsel not ineffective for not striking juror
State v. Todd Brian Tobatto, 2016 WI App 28; case activity (including briefs)
The news, in this otherwise run-of-the-mill case, is the standard of review.
Domestic abuse repeater enhancer applies only if state proves or defendant admits prior convictions
State v. Gavin S. Hill, 2016 WI App 29; case activity (including briefs)
The court of appeals holds that the standards for alleging and applying the ordinary repeater enhancer under § 939.62 also govern the domestic abuse repeater enhancer under § 939.621. Thus, the state must either prove that the defendant was convicted of the required predicate offenses or the defendant must admit that he was convicted of those offenses.