On Point blog, page 193 of 262
Court rejects argument that waiver of counsel was involuntary because it was not “free from financial constraint”
State v. Gregory Garro, 2013AP342-CR, District 1, 12/27/13; court of appeals decision (not recommended for publication); case activity
Garro waived the right to counsel before trial after two retained lawyers withdrew because he couldn’t pay them. (3). Garro told the court he couldn’t afford the fees quoted by the lawyers, but did have some money to hire counsel. (4). After being given time to look for a lawyer he could afford,
Do dentures distort breathalyzer test results?
State v. Mark K. Schrick, 2013AP1166-CR, District 4, 12/27/13 (1-judge decision, ineligible for publication); case activity
Actually, this case concerns more than just dentures. A jury convicted Schrick of operating a vehicle with a prohibited alcohol concentration in violation of §346.63(1)(b). On appeal, Schrick challenged (1) the trial court’s decision to deny his motion for a directed verdict, (2) the sufficiency of the evidence supporting his conviction, and (3) a jury instruction saying that by statute the administered breath test was considered accurate.
Failure to object forfeits error in TPR case and prevents showing of harmful error
Barron County DH&HS v. Tara H., 2013AP2250, District 3, 12/27/13, unpublished; case activity
This is Tara H.’s 2nd trip to the court of appeals regarding this TPR. The first time she won a new dispositional hearing. At the start of that 2nd dispositional hearing, Tara’s counsel asked the trial court about the relevant time period for determining whether termination of her parental rights was in her son’s best interests.
Car in a ditch provides reasonable suspicion that traffic violation occurred
State v. David Lawrence Eastman, 2013AP1401-CR, District 3 (1-judge decision; ineligible for publication); case activity
A police officer may conduct a traffic stop when he has grounds to reasonably suspect that either a crime or a traffic violation has or will be committed. See State v. Popke, 2009 WI 37, ¶23, 317 Wis. 2d 118, 765 N.W.2d 569; State v.
Use of counsel in prior cases defeats defendant’s claim that he didn’t knowingly waive his right to counsel in later case
State v. Scott J. Stelzer, 2013AP1555-CR, District 2, 12/27/13 (1-judge decision; ineligible for publication), case activity
After being convicted of his 3rd OWI offense, Stelzer moved to exclude his 2nd OWI (which occurred in 1996) from the calculation of his prior convictions on the grounds that he was not represented by counsel when he pled guilty to it. Nor did he knowingly, intelligently and voluntarily waived his right to counsel at that time.
Drive-through employee’s observation and tip provide reasonable suspicion for OWI stop
State v. Mary J. Kamuchey, 2013 AP1684-CR, District 4, 12/19/13 (1-judge opinion; ineligible for publication); case activity
Issue: Whether an anonymous “citizen informant’s” call from a McDonald’s drive-through at 2:00 a.m., describing an argumentative driver who smelled of alcohol and was believed to be drunk, provided reasonable suspicion for OWI stop even though the officer who made the stop did not observe signs of erratic driving or intoxication?
Trial counsel was not ineffective for failing to argue officers in resisting arrest case acted without lawful authority
State v. Andrew K. Valiquette, 2013AP909-CR, District 4, 12/19/13; court of appeals decision (1-judge; ineligible for publication); case activity
Valiquette, convicted of resisting arrest, argues the police lacked lawful authority when they moved to pat him down for weapons, and asserts trial counsel’s failure to pursue that defense was based on a misunderstanding of the applicable law. The court of appeals disagrees, concluding instead that trial counsel’s testimony indicates she made a strategic decision to focus on the issue of whether Valiquette resisted instead of whether the police were acting with lawful authority.
Admitting photo of victim and family at homicide trial is harmless error
State v. George A. Trinka, 2013AP539, District 2, 12/18/13; (not recommended for publication); case activity
A jury found Trinka guilty of 1st-dgree reckless homicide and 1st-degree recklessly endangering safety, both with use of a weapon. The issue on appeal was whether the trial court erred in allowing the State to introduce into evidence a family photograph of the victim, his wife, and their children. Trinka argued that the photo was irrelevant and prejudicial in that it improperly invoked the jury’s sympathy.
Driver has no reasonable expectation of privacy in his vehicle registration or driver’s license information
State v. Daniel R. Folkman, 2013AP1363-CR, District 3, 12/17/13; court of appeals decision (1-judge; ineligible for publication); case activity
A deputy on patrol checked the license plate of an oncoming car. The check showed the car belonged to Folkman. The deputy then checked Folkman’s license status, which was expired, so the deputy stopped the car, ultimately resulting in Folkman’s arrest for OWI. (¶2). The court of appeals rejects Folkman’s claim the deputy needed some valid reason to initiate the registration and license checks.
Jury need not be unanimous about exact location in building where felon possessed firearm
State v. Julian L. Perez, 2013AP750-CR, District 1, 12/10/13; court of appeals decision (not recommended for publication); case activity
Where the evidence at trial showed that the defendant possessed a firearm over a short span of time at two locations in the same apartment building, the jury did not need to be unanimous as to which location the possession occurred. Instead, unanimity was required only as to whether the defendant had possessed a firearm in the building in question on the date charged.