On Point blog, page 181 of 263
Exclusion of expert testimony and of prior, unsubstantiated accusations of child sexual assault affirmed
State v. Ricky H. Jones, 2013AP1731-CR, District 2, 7/30/14 (unpublished); case actvity
Exclusion of expert testimony about defendant’s lack of propensity toward child sexual assault
In defending Jones against two counts of 1st-degree sexual assault of a child, his lawyer wanted to elicit expert testimony that Jones posed a low risk of committing a sexual offense–a strategy authorized by State v. Richard A.P., 223 Wis. 2d 777, 589 N.W.2d 674 (Ct. App. 1998). Unfortunately, trial counsel failed to give the expert report to the State pursuant to its discovery demand, so the trial court excluded it under §971.23(7m)(a) and State v. Gribble, 2001 WI App 227, 248 Wis. 2d 409, 636 N.W.2d 488. Jones was convicted and appealed.
Evidence showed dad failed to assume parental responsibility; trial counsel performed effectively
Manitowoc County Human Services Dep’t v. Ralph B., 2014AP140, District 2, 7/30/14 (not recommended for publication); case activity
The court of appeals affirmed the circuit court’s decision to terminate Ralph B.’s parental rights because Manitowoc County met its burden of proving a failure to assume parental responsibility and because trial counsel had sound strategic reasons for not pursuing various lines of defense during the grounds phase of Ralph’s trial.
Community caretaker doctrine didn’t justify warrantless search
State v. Jesse N. Schwartz, 2013AP1868-CR, District 2, 7/30/14 (not recommended for publication); case activity
The community caretaker exception to the Fourth Amendment’s warrant requirement didn’t justify the search of Schwartz’s home because police did not have a reasonable basis to believe another individual was in the home at the time of the search.
Ineffective assistance of trial counsel claim fails because “accidental shooting” theory was reasonable and incompatible with strategies defendant urged on appeal
State v. Kenneth L. Hare, Jr., 2013AP1675-CR, 7/29/14 (not recommended for publication); case activity
In this case, the court of appeals rejected Hare’s contentions that his trial counsel was ineffective for failing to request a jury instruction on the law of self-defense and that he was entitled to an evidentiary hearing on a separate IAC claim his trial lawyer’s failure to request a jury instruction on the law of theft.
Trial counsel wasn’t ineffective for not moving to strike testimony of witness who invoked the privilege against self-incrimination
State v. Matthew D. Campbell, 2011AP1445-CR, District 4, 7/24/14 (not recommended for publication); case activity
After a victim admitted during cross-examination that she lied under oath during direct examination, the trial court advised the victim of her right against self-incrimination. (¶3-4). She invoked that right and was given immunity under §§ 972.08 and 972.085. (¶4). Cross-examination resumed, yielding additional admissions by the victim that she lied or gave inconsistent statements. (¶¶5-6). Under these circumstances, trial counsel was not ineffective for not moving to strike the victim’s direct examination testimony.
Court holds “independent” sources of information save investigation that also relied on statement compelled by probation agent
State v. Christopher T. Seiler, 2013AP1911-CR, District 2, 7/23/14 (not recommended for publication); case activity
Seiler’s compelled statement to his probation agent didn’t taint a subsequent police investigation that led to new charges because, the court of appeals holds, the police investigation was based on sources “independent” of his statements to the agent.
Counsel wasn’t ineffective for following client’s decision to proceed to trial instead of seeking adjournment
State v. Kenneth A. James, 2013AP2409-CR, District 2, 7/23/14 (not recommended for publication); case activity
James insisted on going to trial even though the transcript from the preliminary hearing hadn’t yet been prepared, so he can’t complain now that trial counsel was ineffective for failing to seek an adjournment so he could get the transcript.
Court of appeals holds evidence supports instructions and conviction on lesser-included offense of 1st-degree reckless homicide
State v. Brian A. Patterson, Appeal No. 2013AP749-CR, District 1, 7/22/14 (not recommended for publication); case activity
The State charged Patterson with 1st-degree intentional homicide in a shooting death, but the jury convicted him of a lesser-included offense: 1st degree reckless homicide. In a cut-and-dried decision, the court of appeals held the evidence sufficient to support the conviction, and found no circuit court error in allowing the jury to consider 1st-degree reckless homicide, instructing the jury, or sentencing Patterson.
Trial court didn’t err in answering a question on special verdict form in TPR case
State v. Queentesta H., 2014AP761, District 1, 7/22/14 (1-judge; ineligible for publication); case activity
The circuit court did not err in answering the first question of the special verdict forms submitted to the jury in Queentesta’s TPR trial because the jury could not have reached any other conclusion regarding those questions.
Was the pronouncement of sentence ambiguous? Or was the sentence illegal?
State v. Craig C. Meier, 2013AP2863-CR, District 4, 7/17/14 (1-judge; ineligible for publication); case activity
The answer matters: If the pronouncement of sentence is ambiguous the court could “clarify[] and “reimpose[]” the sentences it originally intended, Krueger v. State, 86 Wis. 2d 435, 442-43, 272 N.W.2d 847 (1979); if the sentence is illegal, it must be commuted to the lawful maximum, § 973.13. In this case the court of appeals holds the circuit court’s initial pronouncement of sentences in this case was ambiguous, so it affirms the circuit court’s “correction” of the sentences to reflect the sentences the court intended to impose.