On Point: 11. Defense Wins

State v. Keith M. Abbott, 2020 WI App 25; case activity (including briefs)

After losing a suppression motion, Abbott pled “no contest” to 2nd degree intentional homicide. The court of appeals affirmed the denial of suppression for some evidence and reversed it as to other evidence. It held that Abbott’s mental breakdown during questioning did not relieve him of his duty make an unequivocal invocation of the right to counsel. And while it rejected the State’s request that it adopt a new harmless error test for cases where the defendant appeals the denial of suppression after pleading guilty, it nevertheless affirmed under the existing harmless error rule.

State v. Rosalee M. Tremaine, 2016AP1963-CR, 2/27/20, District 4, (1-judge opinion, ineligble for publication); case activity (including briefs)

An officer stopped Tremaine for a traffic violation and called another car to bring some warning forms. While the officer was filling them out, another officer arrived with a dog. The first officer handed Tremaine the forms, but did not allow her to leave. Then the third officer conducted a sniff, which led to a search of Tremaine’s purse revealing marijuana and a pipe. Defense counsel filed a suppression motion, but made the wrong argument. The court of appeals now finds him ineffective.

State v. Lois M. Bertrand, 2019AP1240-CR, 2/26/20, District 2, (1-judge opinion, ineligible for publication); case activity (including briefs).

The 4th Amendment prohibits a warantless entry into the curtilage of a home unless it is supported by probable cause and exigent circumstances. State v. Weber, 2016 WI 96, ¶19, 372 Wis. 2d 202, 887 N.W.2d 554. In this case, the officer lacked a warrant, probable cause and exigent circumstances when he seized Bertrand in the garage attached to her house. Thus, the circuit court should have granted the motion to suppress evidence obtained as a result of her seizure.

State v. Angel Mercado, 2020 WI App 14, petition for review granted, 5/19/20; reversed 1/20/20; case activity (including briefs)

The court of appeals orders a new trial for Mercado on the grounds the circuit court erred in admitting the video statements of three children who accused him of sexually assaulting them. The circuit court didn’t comply with the requirements of § 908.08(2) and (3) in admitting the videos, and the videos also weren’t admissible under the residual hearsay exception or as prior inconsistent statements.

Terez Cook v. Brian Foster, Warden, 7th Circuit Court of Appeals No. 18-2214, 1/29/2020

Pursuing a federal writ of habeas corpus is always a long shot; in non-capital cases fewer than 1% of petitions are successful. Terez Cook gets it done here, convincing the Seventh Circuit his lawyer was ineffective at his trial for a home-invasion robbery (and that the Wisconsin court of appeals’ decision to the contrary was not just wrong, but unreasonable). The federal court is puzzled by a few aspects of our state court’s denial of Cook’s claims. But the thing that seems to push that denial over the line into unreasonableness–AEDPA‘s stringent requirement for habeas relief–is that it got a crucial fact wrong. The state court’s opinion relies on a confession by Cook–a confesssion for which there’s apparently no evidence. How did our court go astray? Well, the state described the (non-existent) confession in its brief, and then Cook’s direct-appeal counsel apparently didn’t check the facts, and neither did the court of appeals.

Racine County Human Services Department v. S.J.A., 2019AP2160 & 2161, 2/5/20, District 2 (one-judge decision; ineligible for publication); case activity

It would be interesting to see the briefs in this case, but since it’s a TPR, they’re not online. What we can see is the opinion, which shows commendable (and unfortunately uncommon) attention to detail. It’s easy to imagine a glib, slapdash affirmance of this summary judgment against the parent in a TPR; we don’t get one though. Instead we see a searching review of what was proved and what was not, and a (really all too uncommon) reversal.

State v. George E. Savage, 2019AP90-CR, District 1, 1/22/20 (not recommended for publication), petition for review granted, 5/19/20; case activity (including briefs)

Savage pleaded guilty to violating the sex offender registry statute for not providing updated information about where he was residing. He moved to withdraw his plea, asserting his trial lawyer was ineffective for failing to advise him he had a defense to the charge under State v. Dinkins, 2012 WI 24, 339 Wis. 2d 78, 810 N.W.2d 787. The circuit court rejected the claim based on an erroneous understanding of Dinkins, so it has to reassess Savage’s claim.

State v. Matthew Curtis Sills, 2018AP1052-CR, District 1, 1/14/20 (not recommended for publication); case activity (including briefs)

The State initially Sills with 1^st degree child sexual assault, but then amended the charge twice. Ultimately, Sills pled to 2^nd degree sexual assault of a child. Before he was sentenced, he moved to withdraw his plea arguing, among other things, that court had failed to inform him that he faced a maximum fine of $100,000.

State v. Antonio L. Bell, 2018AP1593 & 1594, 12/27/19, District 1 (not recommended for publication); case activity (including briefs)

Bell pleaded to two sexual assaults: one of his 9-year-old daughter and one of his 14-year-old stepdaughter. He maintained his innocence but insisted that he would plead to spare them from testifying. After sentencing, he filed postconviction motions alleging his counsel didn’t sufficiently investigate the possibility that the 14-year-old’s boyfriend was the actual perpetrator, and also that there was newly-discovered evidence in the form of a more detailed recantation by the 9-year-old: she now also said it was the boyfriend who’d assaulted her. The circuit court denied both without a hearing, but the court of appeals now says Bell should have a chance to prove his claims.

Wood County v. Trevor J. Krizan, 2019AP350, 12/12/19, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

A sheriff’s deputy on patrol at 2:00 a.m. happened by a parking lot for a boat landing. The lot was open to the public 24 hours a day, and he saw a vehicle parked, not running, with its lights off. The officer pulled behind it and shined his spotlight and “takedown lights” (these are apparently very bright lights that may temporarily blind occupants of a vehicle on which they are shined) at the car. He saw two occupants and no signs of distress, but he approached the vehicle, spoke to the occupants, and took their identification. Eventually he noted signs of intoxication that led to Krizan’s arrest for first-offense OWI. But Krizan challenged the stop and won in the trial court, and the county appealed.