On Point: 11. Defense Wins

State v. Brian D. Frazier, 2017AP1249-CR, District 4, 8/2/18 (not recommended for publication); case activity (including briefs)

Frazier agreed to drive himself to the police station to answer some questions and was assured when the questioning began that he was not under arrest and did not have to answer questions. But the initial non-custodial encounter was transformed into custody for purposes of Miranda by the officer’s subsequent words and actions, triggering the need for the Miranda warning.  The officer never read Frazier the warning, so the confession he gave must be suppressed.

State v. Tanya Lynn Schmit, 2017AP871-CR, District 3, 7/31/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Schmit was charged with OWI. She told her trial lawyer there were two witnesses who would support her defense that she wasn’t the driver, but trial counsel didn’t interview the witnesses or call them at trial. Trial counsel’s failure constitutes deficient performance and the deficiency was prejudicial.

State v. Patrick H. Dalton, 2018 WI 85, 7/3/18, reversing in part and remanding an unpublished court of appeals decision; case activity (including briefs)

The supreme court holds there were exigent circumstances that allowed police to draw blood from Dalton without a warrant after he refused to consent to a blood draw. But a majority of the court also holds that the sentencing judge erred by explicitly imposing a harsher sentence on Dalton because he refused to consent to the blood draw.

State v. Ronald Lee. Gilbert, 2016AP1852-CR, 6/26/18, District 1 (not recommended for publication); case activity (including briefs)

Congratulations to Quarles & Brady, which took this appeal pro bono, for scoring a defense win! Gilbert, who was convicted trafficking a child and related crimes, argued that his trial counsel was ineffective for failing to (1) challenge the admission of cellular phone data testimony, (2) demand discovery before trial, (3) impeach the State’s star witnesses with prior inconsistent statements, and (4) strike a biased juror. Gilbert further alleged that his trial counsel made improper statements during his closing. The court of appeals granted a Machner hearing on all claims except the one regarding juror bias.

Carpenter v. United States, USSC No. 16-402, 2018 WL 3073916, reversing United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016); Scotusblog page (includes links to briefs and commentary)

This one is a big deal. It’s impossible to say just where the law will go from here, but it’s clear there will be a lot of cases citing this one in the coming years, both because cell-site location is already a widely-used law enforcement tool, and because the majority opinion has a lot to say about what Fourth Amendment “privacy” might mean now that we all share, often unwittingly, so much information about ourselves with the entities that enable our digital lives.

Rosales-Mireles v. United States, USSC No. 16-9493, 2018 WL 3013806, 6/18/18, reversing United States v. Rosales-Mireles, 850 F.3d 246 (5th Cir. 2017); SCOTUSblog page (includes links to briefs and commentary)

As we noted in our prior post, this case is primarily of interest to federal practitioners, dealing as it does with the federal sentencing guidelines and the doctrine of plain error, which is little-used in Wisconsin’s courts. Nevertheless, the seven-justice majority has some ringing language exhorting courts, in the interest of their own legitimacy, to cop to their own errors when those errors lead to unwarranted consequences for criminal defendants.

State v. Andre L. Scott, 2018 WI 74, 6/20/18, reversing a circuit court order on bypass, case activity (including briefs).

Ruling 7-0 for the defendant, SCOW reversed a circuit court order requiring involuntary treatment to competency for postconviction proceedings because the circuit court failed to follow State v. Debra A.E., 188 Wis. 2d 111, 523 N.W.2d 727 (1994). It also established a process for appealing an order finding a defendant incompetent and requiring involuntary treatment to competency. And–very importantly–it held that lower courts must automatically stay involuntary medication orders pending appeal. Note that aspects of this decision apply to pre-trial and trial competency proceedings as well as postconviction competency proceedings.

State v. Marquis Lakeith Pendelton, 2017AP2081-CR, 6/19/18, District 1, (1-judge opinion; ineligible for publication); case activity (including briefs)

A caller reported to police that 2 suspicious males had been looking into cars parked in a church lot at 1:30 a.m, at 68th and Silver Spring in Milwaukee and had just run away. An officer thought that the dispatcher said that one of the males was Black and wearing a dark hoodie.

State v. Jessica M. Randall, 2017AP1518-Cr, District 4, 6/14/18 (1-judge opinion, ineligible for publication), review granted 10/9/18, reversed, 2019 WI 80; case activity (including briefs)

Here’s a rare sighting! One district of the court of appeals has declared that it is not bound by a decision addressing the same set of facts issued by another district. This is what you call SCOW bait (sorry to say, given that this is a defense win). Randall was arrested for OWI, an officer read the “Informing the Accused” card, and she agreed to a blood test. A few days later, her lawyer sent the lab a letter withdrawing her consent. The court of appeals held that Randall had a right to withdraw her consent up to the time when blood was actually tested. But just 6 months ago, the court of appeals reached the opposite result in State v. Sumnicht. 

State v. John Patrick Wright, 2017AP2006-CR, 6/12/18, District 1;(1-judge opinion, ineligible for publication), petition for review granted 10/9/18, reversed 2019 WI 45, ; case activity (including briefs)

Police stopped Wright’s car because a headlight was out, but they asked him whether he had a concealed carry permit and weapons in the car. He admitted he had a firearm and explained that he had recently completed the CCW course. Too bad. He was arrested and charged with 1 count of carrying a concealed weapon. He moved to suppress on the grounds that the police lacked reasonable suspicion to question him about a CCW permit and weapons.