On Point: C. Unpublished Opinions

Fond du Lac v. S.N.W., 2019AP2073, 6/17/20, District 2 (1-judge opinion, ineligible for publication); case activity

We detect the unmistakable odor of SCOW bait. One of two court appointed medical experts failed to submit his examiner’s report within 48 hours before the final hearing for an original commitment of a prisoner. S.N.W. argued that this violation deprived the circuit court of competence to adjudicate the case. Alternatively, if the court retained competency, the report had to be excluded. The court of appeals disagreed. Who needs expert reports 48 before trial? Not defense lawyers striving to defend their clients’s rights. They can just wing it. This decision is at odds with several unpublished opinions and thus sets up a good petition for review.

State v. K.L.G., 2019AP658, District 1, 6/16/20 (1-judge opinion, ineligible for publication); case activity

What a bummer. K.L.G. moved to suppress an officer’s identification of him made after she looked up his booking photo from a previous incidence. The circuit court granted the motion and dismissed. The State appealed, and the court of appeals reverses.

State v. Michelle Greenwood, 2019AP248, 6/9/20, District 3 (one-judge decision; ineligible for publication) case activity (including briefs)

Greenwood was pulled over for going 81 when the speed limit was 70. The officer testified her eyes were glassy and bloodshot and that her pupils were quite dilated, and did not constrict quickly when he shined his flashlight on them. Per the court of appeals, this was good enough to continue to detain her after the speeding was addressed in order to investigate suspected marijuana intoxication.

State v. Duanne D. Townsend, 2019AP787, 6/9/20, District 1 (not recommended for publication); case activity (including briefs)

Good news: the court of appeals reversed a circuit court decision denying Townsend’s §974.06 motion without a hearing. Townsend now gets a one on his claims for ineffective assistance of postconviction and trial counsel. Bad news: the court of appeals botched the issue of whether Townsend was denied his 6th Amendment right to determine his own defense under McCoy v. Louisiana, 138 S Ct. 1500 (2018). As noted in our post on McCoy, SCOW needs to square that decision with Wisconsin case law.

Waukesha County HHS v. S.S., 2020AP592, District 2, 6/10/20 (one-judge decision; ineligible for publication); case activity

The circuit court properly exercised its discretion in ordering default judgment for S.S.’s egregious conduct of lying to the court to get her TPR trial adjourned.

Juneau County DHS v. C.C., 2020AP438, 6/4/20, District 4, (1-judge opinion, ineligible for publication); case activity

Courts don’t usually award summary judgment in TPR cases, especially not at the grounds phase where the question is whether the parent abandoned the child. The issue is generally too fact intensive. But here the circuit court found no genuine issue of fact regarding abandonment, and the court of appeals affirmed.

State v. Christopher Drew Helwig, 2019AP448-CR, 6/4/20, District 4, (1-judge opinion, ineligible for publication); case activity (including briefs)

The circuit court admitted a blood/urine analysis form and lab report containing blood test results into evidence during Helwig’s OWI trial. On appeal Helwig argued that these documents were hearsay. And because the nurse who drew the blood did not testify at trial, the admission of these documents violated the Confrontation Clause. The court of appeals rejects both arguments.

State v. Barry J. Krull, 2019AP370-CR, 6/2/20, District 3, (1-judge opinion, ineligible for publication); case activity, (including briefs)

Deputies noticed Krull speeding and followed him to his co-worker’s residence. Krull drove 30-40 feet into the driveway when the deputies stopped him, noticed the usual signs of intoxication, conducted FSTs and then took him to the hospital for a blood draw. He moved to suppress arguing that the stop was unlawful and his consent to the blood draw wasn’t voluntary. He lost and appealed.

State v. Donald Simon Mullen and County of Waukesha v. Donald Simon Mullen, 2019AP1187 & 2019AP1188, 5/20/20, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Mullen pulled his car into a bar parking lot around 1:30 a.m. and a passing officer took interest. He pulled into the lot also, and parked behind and to the left of Mullen’s parked vehicle–Mullen had exited and was standing near the closed bar’s front door. The officer pointed at Mullen an “extremely high intensity spotlight” which serves a “disabling function”–preventing the illuminated person from seeing an approaching officer–and approached him on foot, asking where he was coming from. Was Mullen seized by the time he responded in an incriminating way?

State v. Tammy Genevieve Hardenburg, 2019AP1399-CR, 5/27/20, District 1; case activity (including briefs)

At Hardenburg’s OWI trial, the court admitted three blood test reports by three different analysts, but only one of them testified. Hardenburg argued that the testifying analyst served as a conduit for the opinions by the other two in violation of the confrontation clause. She claimed trial counsel was ineffective for not (a) trying to prevent the admission of the second and third analysts’ conclusions, and (b) objecting to the first analyst’s testimony about their conclusions. The circuit court denied Hardenburg’s motion without a hearing. The court of appeals reversed: