On Point: 11. Defense Wins

State v. Michael W. Bryzek, 2016 WI App 48; case activity (including briefs)

Bryzek had already completed most of his alleged acts when a 2010 statute broadened the definition of theft by a bailee; the court of appeals agrees with the circuit court that the jury should have been instructed on the narrower element.

Village of Somerset v. Mark J. Hoffman, 2015AP140, District 3, 5/17/16 (not recommended for publication); case activity (including briefs)

Viewed through the interpretive prism mandated by § 66.0409(6), a local ordinance prohibiting “wander[ing] or stroll[ing] in an aimless manner” that is “not usual for law abiding individuals under circumstances that warrant alarm for the safety of persons” isn’t violated by a person walking around with a loaded semi-automatic rifle slung over his shoulder and a loaded handgun in a holster on his hip.

State v. Justin Carl Herman Hembel, 2015AP1220-CR, 5/10/16, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Police lacked probable cause to believe Hembel violated § 346.54, governing “How to park and stop on streets,” so the stop of Hembel was unlawful.

United States v. Lemurel E. Williams, 7th Circuit Court of Appeals No. 15-1194, 4/26/16

Williams is entitled to a new trial because under the totality of the circumstances, the jury’s continued deliberations after an aborted delivery of the initial verdict were impermissibly coercive.

State v. Russell C. Troka, 2016 WI App 35; case activity (including briefs)

Because the record does not reflect an adequate basis for a finding of manifest necessity warranting a mistrial over Troka’s objection, retrying Troka would violate his right against double jeopardy.

Molina-Martinez v. United States, USSC No. 14-8913, 2016 WL 1574581 (April 20, 2016), reversing and remanding United States v. Molina-Martinez, 588 Fed. Appx. 333 (5th Cir. 2015); Scotusblog page (includes links to briefs and commentary)

Emphasizing the Federal Sentencing Guidelines’ “central” role in sentencing because they “serve as the starting point for the district court’s decision and anchor the court’s discretion in selecting an appropriate sentence” (slip op. at 9, 15), the Supreme Court holds that the application of an erroneous Guidelines range will usually be sufficient to show a reasonable probability of a different outcome for the purposes of plain-error review under Federal Rule of Criminal Procedure 52(b).

Welch v. United States, USSC No. 15-6418, 2016 WL 1551144 (April 18, 2016), vacating and remanding an unpublished order of the 11th Circuit; Scotusblog page (including links to briefs and commentary)

Associate Federal Defender Shelley Fite has kindly agreed to provide her take on the high court’s latest:

Federal defenders and procedure wonks naturally appreciate Welch v. United States, in which the (7–1) Supreme Court held that Johnson v. United States, 135 S. Ct. 2551 (2015), applies retroactively to cases on collateral review.  But (read on!) the case does have some application for state practitioners—at least those who do post-conviction work.

United States v. Lonnie Whitaker, 7th Circuit Court of Appeals Nos. 14-3290 & 14-3506, 4/12/16

Taking a drug-sniffing dog into the locked, second-floor hallway of an apartment building where there were at least six to eight apartments without first obtaining a warrant violated the Fourth Amendment under Florida v. Jardines, 133 S. Ct. 1409 (2013), and Kyllo v. United States, 533 U.S. 27 (2001).

State v. Michael A. Durham, 2015AP1978-CR, 4/12/2016, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Police were dispatched in response to a 6:30 p.m. phone call from a neighbor about unintelligible yelling and “banging” that shook the walls of Durham’s residence. (¶2). After knocking and ringing the doorbell and receiving no response, police simply entered the house, guns drawn, and proceeded toward the stairs, where they encountered Durham. (¶¶3-5). The officers ordered Durham to show his hands, he didn’t, and they tasered him. (¶6). He was charged with resisting an officer, unsuccessfully moved to suppress evidence obtained via the warrantless search of his home, and was convicted at trial. (¶1). The court of appeals here reverses the conviction because the suppression motion should have been granted.

State v. Raymond L. Nieves, 2014AP1623-CR, 4/5/16, District 1 (recommended for publication, but not published); petition for review granted 9/13/16; case activity (including briefs).

This case explores the line between Bruton v. U.S., 391 U.S. 123 (1968)(which holds that at a joint trial the confession of one defendant is inadmissible against the co-defendant unless the confessing defendant testifies and is subject to cross examination) and Richardson v. Marsh, 481 U.S. 200 (1987)(which holds that a non-testifying defendant’s written confession can be admitted if it is redacted to eliminate all references to his co-defendant). Nieves and his codefendant, Maldonado, were accused of 1st degree intentional homicide. The trial court denied severance and allowed a witness testify about Maldonado’s confession while repeatedly use the term “they” (implicating Maldonado and Nieves). The court of appeals ordered a new trial because admission of the confession evidence violated the Confrontation Clause.