On Point: 11. Defense Wins

State v. Adam W. Vice, 2020 WI App 34, petition for review granted 8/30/20, reversed, 2021 WI 63; case activity (including briefs)

This is a “recommended for publication”, split court of appeals opinion where the State lost in a child sexual assault case. In other words the State will surely petition for review, and SCOW will take it. Applying State v. Davis, 2008 WI 71, 310 Wis. 2d 583, 751 N.W.2d 332, the majority held that the defendant’s polygraph test and the confession were two discrete events, but based on the facts of this case, the confession was involuntary. The dissent by Judge Hruz would hold the confession voluntary.

State v. Troy R. Lasecki, 2020 WI App 36; case activity (including briefs)

Wonders never cease. The State charged Lasecki with 2 counts of failure to return security deposits to tenants in violation of Wis. Admin Code. §ATCP 134.06(2) and §§100.20(2) and 100.26(3)(2013-3104). Lasecki proceeded pro se at trial, and a jury convicted  on both counts. His appeal drew amicus briefs from the Apartment Ass’n for Southeastern Wisconsin, the Univ. of Wis. Law School and from the Attorney General  about whether the statute and code criminalized the failure to return rent. Answer: “yes.” but Lasecki won anyway because the jury instructions were erroneous and the court erred in ordering restitution above the victim’s pecuniary losses.

State v. A.N.G., 2019AP1100, 5/21/20, District 4 (one-judge decision; ineligible for publication); case activity

A.N.G. and a middle-school classmate collaborated on a drawing depicting a “cartoon-style bomb,” a school, and a body on the ground. Two weeks later, a teacher caught them passing a note, which turned out to be the drawing. Naturally, the state initiated quasi-criminal proceedings alleging A.N.G. had committed disorderly conduct and made a “terrorist threat.” A.N.G. was found delinquent, but the court of appeals now reverses, saying the adjudications violate the First Amendment.

Winnebago County v. L. F.-G., 2019AP2010, 5/20/20, District 2 (one-judge decision; ineligible for publication); case activity

This is an appeal of the extension of the commitment of someone the court calls “Emily.” Following our supreme court’s decision in Portage County v. J.W.K., 2019 WI 54, ¶19, 386 Wis. 2d 672, 927 N.W.2d 509, the court of appeals reverses because the county didn’t introduce any evidence that Emily would be dangerous if treatment were withdrawn.

Town of Waterford v. Christopher Pye, 2019AP737, 5/6/20, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

The court of appeals rejects the municipality’s argument that the doctrine of equitable tolling applies to the two-year statute of limitation for bringing a forfeiture action.

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.