On Point blog, page 133 of 261
Challenges to seizure, arrest, refusal finding rejected
Washington County v. Daniel L. Schmidt, 2016AP908, District 2, 11/30/16 (one-judge decision; ineligible for publication); case activity (including briefs)
Schmidt makes a three-pronged attack on the revocation of his driving privileges for refusing a chemical test, arguing he was seized without reasonable suspicion, arrested without probable cause, and did not improperly refuse a test. The court of appeals rejects each claim.
Reluctant, forgetful witness’s statements to police properly admitted as prior inconsistent statements
State v. Connie Mae Apfel, 2016AP188-CR, District 3, 11/29/16 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court properly exercised its discretion in admitting extrinsic evidence of the complaining witness’s statements to the police as prior inconsistent statements under §§ 908.01(4)(a)1. and 906.13(2)(a) after the witness expressed reluctance to testify and said he didn’t remember what he told police.
Statute governing transportation of firearms doesn’t preclude CCW conviction
State v. Brian Grandberry, 2016AP173-CR, District 1, 11/29/16 (one-judge decision; ineligible for publication), petition for review granted 3/13/17; affirmed 4/10/18; case activity (including briefs)
Grandberry was charged with carrying a concealed weapon after police stopped the car he was driving and found a loaded pistol in the glove compartment. Citing § 167.31, which regulates the transportation of firearms, he argues he was not “carrying” a concealed weapon but was instead “transporting” it under § 167.31(2)(b)(intro.) and 1., which allow handguns to be transported in a car, even when loaded. (¶6). The court of appeals says this argument misses its mark.
Over-the-road trucker’s cab counts as “residence” for purposes of domestic abuse modifiers
State v. Michael Lee Brayson, 2016AP896-CR, District 1, 11/29/16 (one-judge decision; ineligible for publication); case activity (including briefs)
Brayson’s girlfriend, L.A.R., is a long-haul trucker. When she goes out on the road he accompanies her and stays with her in the truck, though both maintained separate addresses in Mississippi. (¶¶3-6). Under these facts, Brayson’s convictions for battery of L.A.R. at a Wisconsin travel center were subject to the domestic abuse surcharges and modifiers under §§ 968.075(1)(a)(intro.) and 973.055(1)(a)2. because Brayson and L.A.R. “reside[d]” together in the truck.
Evidence sufficient to support extension of protective placement order
Milwaukee County v. M.G.-H., 2016AP596, District 1, 11/29/16 (one-judge decision; ineligible for publication); case activity
The evidence presented at a hearing on whether to continue M.G.-H.’s protective placement was sufficient to show M.G.-H. “has a primary need for residential care and custody” and “is so totally incapable of providing for his or her own care or custody as to create a substantial risk of serious harm to himself or herself or others,” as required by § 55.08(1)(a) and (c).
TPR decision affirmed
State v. T.R.D., 2016AP1413, District 1, 11/29/16 (one-judge decision; ineligible for publication); case activity
T.R.D. challenges the circuit court’s conclusions that she was an unfit parent and that it was in the best interests of her child for T.R.D.’s parental rights to be terminated. The court of appeals rejects the challenges.
Court of appeals: no error in TPR disposition phase
Dane County DHS v. S.C., 2016AP1787, 11/17/16, District 4 (1-judge decision; ineligible for publication); case activity
S.C. appeals the termination of her parental rights to her daughter D.C. She pled to a continuing CHIPS ground; she challenges only the circuit court’s discretionary conclusion, at the dispositional phase, that termination was in D.C.’s best interest.
In-court interpreter’s errors weren’t prejudicical
State v. Brenda S. Webster, 2016AP225-CR, District 3, 11/15/16 (not recommended for publication); case activity (including briefs)
M.P., the complaining witness at Webster’s trial, for robbery of a grocery store, spoke only Spanish, so she testified through an interpreter. On three occasions the interpreter mistranslated M.P.’s testimony. The court of appeals holds the interpreter’s mistakes, considered individually or together, weren’t sufficiently prejudicial to warrant a new trial.
Of reasonable inferences and fearful jurors
State v. Isiah O. Smith, 2015AP1645-CR, 11/15/16, District 1 (not recommended for publication); case activity (including briefs)
Two guys walk into an apartment complex and leave a short time later. One carried a gun and a cell phone; the other a cell phone. They got into a car belonging to a friend of the guy carrying only the cell phone and drove off. A surveillance video captured these movements but not the shooting death that occurred in the complex at about the same time. Was there sufficient evidence to convict the guy holding just the cell phone of 2nd degree reckless homicide as a party to a crime?
Prison garb not unfashionable at ch. 51 trial
Winnebago County v. J.M., 2016AP619, District 2, 11/9/16 (one-judge decision; ineligible for publication), petition for review granted 5/15/17, affirmed, 2018 WI 37; case activity
J.M.’s lawyer didn’t secure civilian clothes for him to wear at his ch. 51 recommitment hearing, so he appeared before the jury in his prison greens (sans the shackles, at least; and the stun belt wasn’t visible to the jury). The court of appeals rejects the claim J.M.’s lawyer was ineffective for failing to make a modest outlay at the local Goodwill to purchase J.M. an outfit without the negative stigmata and for failing to ask for a curative instruction.