On Point: B. Non-statutory defenses

State v. Zachary W. Swan, 2015AP1718-CR, 5/5/16, District 4 (one-judge opinion; ineligible for publication); case activity, including briefs

Swan was convicted of OWI 2nd with a prohibited alcohol content. On appeal he argued that the circuit court should have suppressed the results of a preliminary breath test and other evidence due to the absence of probable cause. The court of appeals initially rejected Swan’s argument on the ground of issue preclusion, but on reconsideration agreed with Swan that issue preclusion “could not apply as a matter of law.” (¶2, ¶13). It now rejects Swan’s argument on the merits and affirms.

That’s what we suspect anyway. In 2011, Kansas passed the Offender Registration Act, which requires persons convicted of certain felonies to register with state authorities. That prompted the question of whether applying the Act to persons convicted before it went into effect would violate the constitutional prohibition against ex post facto laws. Last week, the Kansas Supreme Court issued a 4-3 opinion answering “yes.” A few hours later it issued another 4-3 opinion reversing itself on the very same issue.  

State v. Alina N. Caminiti, 2015AP122-CR, and State v. Matthew B. Caminiti, 2015AP123-CR, 4/6/2016, District 4 (not recommended for publication); case activity (including briefs).

The Caminitis were members of a church in Black Earth whose leader (Matthew’s father) advocated “rod discipline”–the beating of infants and young children on the bare buttocks with wooden spoons or dowels, often resulting in bruising. The father’s convictions for conspiracy to commit child abuse were affirmed by the court of appeals in 2014; the Caminitis now appeal their convictions at trial for physical abuse of their two children on substantive due process and religious freedom grounds.

Question presented:

Whether, under Ashe v. Swenson, 397 U.S. 436 (1970), and Yeager v. United States, 557 U.S. 110 (2009), a vacated, unconstitutional conviction can cancel out the preclusive effect of an acquittal under the collateral estoppel prong of the Double Jeopardy Clause?

State v. D. T., 2015AP1476, 3/1/2016, District 1 (one-judge opinion; ineligible for publication); case activity

D.T. asserts he was ambushed when the juvenile court took judicial notice of his file and sua sponte called a witness before lifting the stay of his five-year sentence; the court of appeals affirms after finding different grounds to lift the stay.

State v. Keith D. McEvoy, 2015AP1262, District 4, 12/30/2015 (one-judge decision; ineligible for publication); case activity (including briefs)

Under the facts of this case, the temporary suspension of McEvoy’s license based on his blood alcohol content didn’t equitably estop the State from seeking to revoke his license based on his refusal to submit to a chemical test of his blood.

State v. Bernard Ikechukwel Onyeukwu, 2014AP518-CR, 2/26/15, District 4 (not recommended for publication); click here for briefs.

The State charged the defendant with 10 counts of sexual assault, 5 of which required proof that the victim suffered from a mental deficiency and that the defendant knew it. The jury acquitted on 6 counts. Just 2 of the convictions required proof of mental deficiency. They spawned interesting grounds for appeal, but this decision just wasn’t up to the task.

On review of a published court of appeals decision in Kempainen (case activity) and a per curiam decision in Hurley (case activity)

Issues (adapted from the State’s  PFR in Hurley):

Did the amended complaint charging repeated sexual assault of a child, which alleged that Hurley assaulted his stepdaughter at least 26 times over a five or six-year charging period, satisfy Hurley’s due process right to prepare a defense?

Did the circuit court properly exercise its discretion in admitting “other acts” evidence that Hurley repeatedly assaulted his sister when she was 10 and he was 14 in view of the greater latitude shown “other crimes” evidence in child sexual assault cases?

Did the circuit court err in ordering a new trial due to the prosecutor’s unobjected-to remark in closing argument about Hurley’s failure in his trial testimony to make a strong denial of his sister’s allegations?

State v. Vernon D. Hershberger, 2014 WI App 86; case activity

As a general rule, a person may not collaterally attack a prior judicial order or judgment in a proceeding brought to enforce that order or judgment, e.g., State v. Campbell, 2006 WI 99, ¶¶51-55, 294 Wis. 2d 100, 718 N.W.2d 649. The court of appeals holds this rule also applies to proceedings brought to enforce an administrative order.

State v. Brian Kempainen, 2014 WI App 53, petition for review granted 9/18/14, affirmed, 2015 WI 32; case activity

In this case, the circuit court dismissed 2 counts of sexual assault of a child against Kempainen because the charges failed to provide sufficient notice of when the assaults occurred thus violating due process.  The court of appeals, clarifying the test in State v. R.A.R. and State v. Fawcett, reversed and held that the date of the crimes need not be precisely alleged.