On Point: 11. Defense Wins

State v. Manuel Garcia, 2020 WI App 71, petition to review granted, 1/20/21, affirmed by an evenly divided court, 2021 WI 76; case activity (including briefs)

Even if a court suppresses a defendant’s voluntary statement because it was obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), the state may use the statement to impeach the defendant if he or she elects to testify. Harris v. New York, 401 U.S. 222 (1971); James v. Illinois, 493 U.S. 307 (1990). The issue in this case is whether this “impeachment exception” allows the state to use the defendant’s statement  to “rehabilitate” one of its witnesses. The court of appeals holds it does not: the state may use an illegally obtained statement only to impeach the defendant’s testimony.

State v. Pedro R. Mendoza, III, 2018AP2325-Cr,10/6/20,  District 1 (not recommended for publication); case activity (including briefs)

A jury convicted Mendoza of 1st degree recklessly endangering safety and 1st degree endangering safety when he shot into a car occupied by H.V. and M.M.C. Mendoza claimed his trial counsel was ineffective for failing to: (1) seek exclusion of his history with the Latin Kings, (2) seek admission of evidence that H.V. and M.M.C. had previously intimidated witnesses and conspired to falsify testimony; and (3) introduce expert testimony regarding his PTSD to help show that he shot in self-defense. The circuit court ordered a Machner hearing, but denied relief. The court of appeals issued a rare reversal on all 3 ineffective assistance of counsel claims and remanded the case for a new trial.

State v. Jerry A. Leister, 2020AP365-CR, District 4, 9/24/20 (1-judge opinion, ineligible for publication); case activity

Leister, charged with intentional mistreatment of animals,  wanted a lawyer but had trouble retaining one.  After repeated adjournments, he wound up trying his case pro se in the absence of a colloquy to determine whether he knowingly, intelligently and voluntarily waived his right to counsel. After his conviction, he retained lawyer, who raised the issue in a postconviction motion. 

Brown County Human Services v. T.F., 2020AP793, 9/22/20, District 3 (1-judge opinion, illegible for publication); case activity

To establish grounds for terminating T.F.’s parental rights, the Department sought to prove that she had abandoned her daughter, Allie, for period of 6 months or longer. It filed a successful motion in limine seeking to exclude evidence of T.F.’s communications and visits with her daughter occurring after it filed its TPR petition. The court of appeals held that the circuit court erred in excluding this evidence. It reversed and remanded the case for a new jury trial on grounds for the TPR.

State v. James E. Brown, 2020AP489, 9/9/20, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

Officers responded to a call for shots fired; the caller apparently described the shooting party as a “black male wearing a black hoodie and shorts.” On arriving in the “vicinity” they saw a black man, Brown, driving a vehicle. Illuminating the interior of the vehicle, an officer thought he saw that Brown was wearing a dark-colored hoodie, and he stopped Brown. On approach, though, the officer saw that Brown was wearing a maroon sweatshirt and pants.

State v. Ashley L. Monn, 2019AP640-CR, 9/9/20, District 3, (1-judge opinion, ineligible for publication); case activity

When police executed an arrest warrant for a man at his trailer home, they found Monn there too. They cuffed her, conducted a protective search, confirmed she had no outstanding warrants, and told her she would be released without charges. Unfortunately, she asked to get her purse from the trailer.

Shan Fieldman v. Christine Brannon, __F.3d__  (7th Cir. 2020)

Shan Fieldman climbed into a truck and told a hit man that he wanted his ex-wife and her boyfriend killed. Turns out the hit man was an undercover cop who videotaped their conversation. At trial the State played the video. Fieldman testified that he did not intend for the hit man to actually commit the murders, but he was barred from fully explaining why. He was convicted of soliciting murder for hire, lost his direct appeal, won habeas relief in the Southern District of Illinois, and now the 7th Circuit has affirmed.

State  v. Catherine Cuskey Large, 2019AP1966-CR, 8/13/20, District 4 (1-judge opinion, ineligible for publication; case activity (including briefs)

The court of appeals correctly affirmed the circuit court’s decision to suppress OWI evidence in this case, where an officer admitted that the New Glarus Police Department’s “protocol” was to administer PBTs on motorists whether they had probable cause for OWI or not. But court of appeals did so by taking a heavy-handed approach to waiver, a rule of administration that appellate courts have the discretion to apply or not.

Danny Wilber v. Michael Thurmer, Case No. 10-C-179 (E.D. Wis., Aug. 4, 2020).

It’s said that defendants having meritorious postconviction claims are more likely to win relief on a habeas petition in federal court than on direct appeal in Wisconsin’s appellate courts. This decision could be a poster child for that theory.  On Point last reported on Danny Wilber’s case in 2018 when the court of appeals rejected seven §974.06 claims and affirmed his conviction for 1st degree homicide. Judge Griesbach just granted Wilber’s habeas petition and ordered a new trial.

State v. Darrin Stingle, 2019AP491, District 3, 7/28/20 (1-judge opinion, ineligible for publication); case activity (including briefs)

Stingle is not the typical subject of an On Point post. He owns farmland in Outagamie County, and the DNR cited him for discharging fill material into wetlands on it. At a 1-day bench the trial judge twice made comments suggesting that he had prejudged the case. The court of appeals reversed and remanded for a new trial before a different judge. It also admonished (but did not sanction) the State’s appellate lawyer for requesting an extension two weeks after its deadline for filing a response brief.