On Point blog, page 92 of 263
No prejudice caused by counsel’s failure to object to admission father’s criminal record at TPR trial
State v. L.V., 2018AP1065, 1/29/19, District 1 (one-judge opinion; ineligible for publication); case activity
The defense moved to exclude evidence of L.V.’s criminal record prior to his daughter’s birth. The State told the court it had no intention of introducing his criminal record at trial. But when L.V. took the stand, guess who started asking about his criminal record?
Double jeopardy no bar to retrial after mistrial caused by State’s delay in disclosing 2nd photo array
State v. Mickey L. Miller, 2017AP2323-CR, 1/29/19, District 1 (not recommended for publication); case activity (including briefs)
Midway through Miller’s trial, the State discovered that two photo arrays had been conducted when both parties thought there had been just one. The State did not immediately disclose this fact. It waited until after the victim testified. The defense obtained a mistrial. The court of appeals holds that double jeopardy did not bar the State from trying Miller again.
Finding of improper refusal upheld
State v. Nathan Alan Bise, 2017AP1662, District 4, 1/24/19 (one-judge decision; ineligible for publication); case activity (including briefs)
Bise raises three challenges to the finding he improperly refused a breath test. The court of appeals rejects them all.
Challenges to seizure at apartment door and protective sweep of apartment rejected
State v. Jordan Bennett Micklevitz, 2018AP637-CR, District 1, 1/23/19 (not recommended for publication); case activity (including briefs)
The court of appeals rejects Micklevitz’s challenges to the search of his apartment.
Police questioning of defendant while chained to a hospital bed was not an “interrogation”
State v. William Lester Jackson, 2018AP896-CR, District 1, 1/23/19, (not recommended for publication); case activity (including briefs)
Jackson accidentally shot himself with a firearm that a friend left in his car and then drove himself to a hospital. A detective chained him to his bed because he needed to talk to Jackson but he also had to help with chaos in the ER due to other shootings that night. Two detective later questioned Jackson without Miranda warnings, and he admitted to being a felon in possession.
Sufficient evidence supported finding that dad failed to assume parental responsibility for kids
State v. K.L., 2018AP2180-2183, 1/23/19, District 1; (1-judge opinion, ineligible for publication); case activity
After the circuit court terminated K.L.’s parental rights to 4 of his kids, he appealed arguing that the finding that he failed to assume parental responsibility for his kids was clearly erroneous. The circuit court focused only on the period after the kids were removed from home not on his actions throughout their lives. The court of appeals disagreed:
Circuit court erred in ordering disclosure of confidential informant
State v. Robert Billings, 2017AP2272-CR, District 1, 1/15/19 (one-judge decision; ineligible for publication); case activity (including briefs)
Billings sought disclosure of the identity of the confidential informant who supplied information that was used to get a search warrant for his apartment. The circuit court granted his request. The circuit court erroneously exercised its discretion because it didn’t apply the correct legal standard.
Premature revocation for refusal can’t be invalidated
City of Crandon v. Lynda Morris, 2017AP2266, District 3, 1/15/19 (one-judge decision; ineligible for publication); case activity (including brief of appellant; respondent didn’t file one….)
The circuit court improperly jumped the gun by ordering Morris’s driver’s license to be revoked for refusal before the 10-day deadline for her to request a refusal hearing. But she never asked for a refusal hearing, and once the deadline to do so passed the circuit court lost competency to undo the revocation—even though the associated OWI 3rd charges were ultimately thrown out after the evidence was suppressed.
Defense win! Driving near scene of crime does not create reasonable suspicion for stop
State v. Brady R. Adams, 2018AP174-CR, 1/15/19, District 3 (1-judge, ineligible for publication); case activity (including briefs)
Noting that no Wisconsin precedent addresses the issue in this case, the court of appeals follows United States v. Bohman, 683 F.3d 861 (7th Cir. 2012) and holds that the suspicion of illegal activity in a place is not enough to transfer that suspicion to anyone who leaves that place such as would justify an investigatory detention.
Court of appeals rejects claim that counsel became a witness in his client’s case and should have withdrawn
State v. Kimberly C. Thomas, 2018AP304-CR, 1/15/19 (1-judge opinion, ineligible for publication); case activity (including briefs)
On the morning of her final pretrial, Thomas called her lawyer’s office to say that she just got a job, had to start that day, and couldn’t make the conference. When she didn’t show, she was charged and convicted of bail-jumping. She asserted ineffective assistance of counsel because her lawyer didn’t defend her absence. Also, he was a witness to her bail-jumping, so he should have withdrawn before the case went to trial.