On Point blog, page 83 of 263
Defense wrestles State into conceding Batson error, but doesn’t get new trial
State v. Patrick D. Zolliecoffer, 2018AP1639-CR, 8/20/19, District 1 (not recommended for publication); case activity (including briefs)
Zolliecoffer challenged two of the State’s peremptory strikes as racially based. On appeal, the State conceded that the circuit court failed to apply the 3-step procedure for analyzing Batson claims, which On Point recently explained here. Zolliecoffer urged the court of appeals to remand for a new trial. The State sought a remand to apply Batson. Surprise! The State won.
Statements driver made before arrest admissible; so was retrograde extrapolation testimony
State v. Christopher J. Durski, 2018AP1750-CR, District 2, 8/21/19 (one-judge decision; ineligible for publication); case activity (including briefs)
Durski was arrested at a motel, where he had decamped after a family dispute. In investigating the family dispute police learned Durski drank alcohol before leaving for the motel, so they tracked him down. Durski wasn’t in custody during the officers’ initial questioning of him at the motel, so his statements were admissible despite the lack of Miranda warnings. So was the state’s retrograde extrapolation evidence.
Man bites dog!
State v. Robert L. Kavalauskas, 2019AP610-CR, District 2, 8/21/19 (one-judge decision; ineligible for publication); case activity (including briefs)
And court finds reasonable suspicion to stop and detain driver to investigate OWI!
Challenges to armed robbery conviction and sentence rejected, but sentence credit granted
State v. Sean N. Jones, 2018AP948-CR, District 3, 8/20/19 (not recommended for publication); case activity (including briefs)
Jones makes various challenges to his conviction and sentence for being to party to the crime of armed robbery. The court of appeals rejects all of his claims except the last one, involving sentence credit.
COA: driver ordered out of car and interrogated wasn’t in Miranda custody
State v. Traci Busha, 2018AP1863, 8/20/19, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)
Ms. Busha’s car was stuck in a ditch on the outskirts of Superior. A responding police officer found her alone in the passenger seat. She had been drinking but said she hadn’t been driving; her boyfriend “Scott” had been. For various reasons the officer didn’t buy her story. After about 15 minutes, while a tow truck was en route, the officer told her to get out of the car and stand by his vehicle. At this point, he told her he didn’t believe her account and said it was time to tell the truth. She admitted to driving.
COA: Good faith OKs blood draw whether or not implied consent statute constitutional
State v. Justin W. Paull, 2017AP1210, 8/15/19, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
Mr. Paull was found bloody and semi-conscious after a motorcycle accident. He smelled of intoxicants and had slurred speech. Police arrested him, and he was taken to the hospital. An officer read the informing the accused form to the now-unconscious Mr. Paull, then drew his blood.
Totality of circumstances justified extension of traffic stop
State v. Yunus E. Turkmen, 2018AP1673-CR, District 3, 8/13/19 (one-judge decision; ineligible for publication); case activity (including briefs)
An officer stopped Turkmen after he made a U-turn in the middle of an intersection and squealed his tires loudly. (¶3). Based on that conduct and information obtained and observations made after the stop, there was a reasonable basis to extend the stop to conduct field sobriety tests.
COA finds reasonable suspicion for drug investigation, FSTs; probable cause for arrest
County of Dunn v. Cashe L. Newville, 2018AP1167, 8/6/19, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)
Newville was pulled over by a sheriff’s deputy who observed that, among other things, his license plate lamps weren’t working. An arrest on suspicion of operating under the influence of methamphetamine followed. The court of appeals blesses every step in the investigation that led to that arrest.
Defense win! Court must hold probable cause hearing within 72 hours of detention for violating Ch. 51 settlement agreement
Ozaukee County v. R. C.J. Y., 2019AP297, 8/7/19, District 1 (1-judge opinion, ineligible for publication); case activity
Many Chapter 51 cases are resolved through 90-settlement agreements entered just before or just after the circuit court holds a probable cause hearing. These settlement agreements are governed by §51.20(8)(bg),(bm) and (br).
COA holds that DA’s sarcastic belittling of public defenders was due to inexperience, not overreach
State v. Darius Kavonta Smith, 2019AP642 & 643-CR, 8/6/19, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs)
During closing arguments, the DA made a sarcastic, belittling reference to public defenders who line up empty chairs to emphasize that the State neglected to call witnesses to prove guilt beyond a reasonable doubt. The DA also commented on witnesses whom Smith had not called. Defense counsel moved for a mistrial because the DA’s belittling of public defenders stigmatized their clients, and his comment about her failure to call witnesses improperly shifted the burden to the defense. The circuit court granted the mistrial.