On Point blog, page 3 of 29
SCOW ignores import of withheld evidence; declares it “immaterial”
State v. Jeffrey L. Hineman, 2023 WI 1, 1/10/23, reversing a per curiam court of appeals opinion, 2020AP226, case activity (including briefs)
At Hineman’s trial for sexual assault of a child, a police officer testified that she believed the child had accused Hineman of touching him several months before her investigation began, and several months before the child made similar statements in a forensic interview. This wasn’t true, and the officer’s police report contradicted her testimony on this point: it said a CPS report had noted no allegations of abuse. But when defense counsel attempted to impeach the officer with her own report, the officer testified that she “didn’t know if” she’d “documented” the alleged prior consistent accusation, and while she “would think [she] would have” written such information in the report, she “might not have.” It would have been easy to prove conclusively that there was no such allegation: counsel just needed the CPS report. But she didn’t have it, because the state–in what it concedes was a violation of its Brady obligations–didn’t turn it over. SCOW now says “eh, who cares?” and reverses the court of appeals’ grant of a new trial.
Court of Appeals: Aiding buyer in drug sale can lead to Len Bias liability because it also aided dealer
State v. Terry L. Hibbard, 2022 WI App 53; case activity (including briefs)
In a decision that allows for a sweeping expansion of aiding and abetting prosecutions in Len Bias cases, the court of appeals holds that a person assisting only a buyer a drug transaction could also be prosecuted for reckless homicide if the buyer dies from using the drug because any act aiding the buyer in getting the drugs also necessarily aids the seller in making the delivery.
SCOW will decide whether DA improperly commented on defendant’s decision not to testify
State v. Tomas J. Hoyle, 2020AP1876-CR, petition for review of an unpublished opinion granted 9/14/22; case activity (including briefs)
Issue: (adapted from the State’s PFR):
The 5th Amendment prohibits a prosecutor from commenting on defendant’s failure to to the stand. Griffin v. California, 380 U.S. 609, 615 (1965); Bies v. State, 53 Wis. 2d 322, 325-26, 193 N.W.2d 46 (1972). In a case where the defendant exercises his right not to testify, does the prosecution violate this prohibition by telling the jury that the victim’s account is “uncontroverted” and no evidence was offered to dispute it?
COA affirms trial court’s refusal to permit testimony that OWI arrestee asked for breath test
State v. Travis D. Huss, 2021AP1858, 7/20/22, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)
Huss was stopped at 1 a.m. for going through a flashing red light without stopping. The officer suspected he was impaired and eventually arrested him for OWI. Huss asked the officer to give him a preliminary breath test before she arrested him, but the circuit court excluded evidence of his request from being admitted at trial. The court’s ruling was not an erroneous exercise of discretion.
COA rejects IAC claims based on the failure to seek suppression of an in-court identification
State v. Alberto E. Rivera, 2021AP1100, 7/12/22, District 1, (not recommended for publication); case activity, (including briefs)
The court of appeals rejects Rivera’s claims for ineffective assistance of postconviction counsel for failing to raise two claims of ineffective assistance of trial counsel. Rivera challenged trial counsel’s counsel’s failure to seek suppression of an in-court identification because (a) it was tainted by an earlier suggestive “showup” procedure, and (b) his right to counsel was violated during the line-up because his retained counsel was not present for it.
Defense win! DA’s closing argument was improper comment on defendant’s exercise of right not to testify
State v. Tomas Jaymitchell Hoyle, 2020AP1876-CR, 4/26/22, District 3 (not recommended for publication); case activity (including briefs)
Hoyle chose to remain silent at his trial for child sexual assault. During closing arguments, the prosecutor repeatedly argued that the testimony from “Hannah” (the complaining witness) was “uncontroverted” and told the jury it had “heard no evidence” and that there was “absolutely no evidence” disputing her account of the alleged sexual assault. Under the circumstances of this case, the court of appeals holds that the prosecutor’s arguments violated Hoyle’s Fifth Amendment rights.
Court of Appeals addresses successive postconviction motion, judge’s use of written rather than oral sentencing rationale
State v. Hajji Y. McReynolds, 2022 WI App 25; case activity (including briefs)
This decision addresses: 1) the propriety of successive postconviction motions; 2) a claim that trial counsel was ineffective for failing to object to testimony vouching for the credibility of another witness and to improper character evidence; and 3) the novel issue of the sentencing judge’s use of a written rather than oral explanation of its sentencing rationale under § 973.017(10m)(b).
Failure to preserve squad cam and body cam video didn’t violate due process
State v. Rory David Revels, 2021AP1185-CR, District 4, 1/13/21 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court held the police violated Revels’s due process rights by failing to preserve the footage from the squad car camera and body camera of the officer who stopped Revels. The court of appeals reverses, holding the circuit court’s conclusions aren’t supported by the record.
Defense win: Prosecutor improperly questioned defendant at trial about his exercise of right to remain silent when he was arrested
State v. Nestor Luis Vega, 2021AP126-CR, District 4, 12/23/21 (not recommended for publication); case activity (including briefs)
Vega testified at his trial on drug delivery charges and denied he had sold drugs to the informant and that the informant was not telling the truth. (¶12). On cross examination, the prosecutor, over defense counsel’s objections, asked Vega why he failed to give police his exculpatory version of events when he was arrested. (¶¶13-15). These questions violated Vega’s due process rights under State v. Brecht, 143 Wis. 2d 297, 421 N.W.2d 96 (19880, and Doyle v. Ohio, 426 U.S. 610 (1976), and the trial court’s error in allowing the questions was not harmless.
Defense win: Modification to standard jury instruction on driving while impaired by drugs relieved state of burden of proof
State v. Carl Lee McAdory, 2021 WI App 89; case activity (including briefs)
McAdory was charged with driving with a detectable amount of restricted controlled substances—cocaine and THC—and driving under the influence of those substances. At trial, the state convinced the trial judge to modify the standard jury instruction for the latter charge, Wis. J.I.—Criminal 2664, by deleting the statement that not every person who has consumed controlled substances is “under the influence.” This modification, coupled with the prosecutor’s closing argument that it had proven its case by proving McAdory had a detectable amount of the substances, effectively relieved the state of its burden to prove that McAdory was “under the influence.”