On Point blog, page 1 of 3
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).
Defense win! Judge can’t attend TPR dispositional hearing by video over parent’s objection
Adams County Health and Human Serv. Dep’t. v. D.J.S., 2019AP506, District 4, 6/20/19 (1-judge opinion, ineligible for publication; case activity
You don’t see defense wins in TPR appeals very often! In this case, D.J.S., the witnesses, the GAL, and counsel for both parties were at the Adams County Courthouse. For unknown reasons,the judge appeared by videoconference from the Marquette County Courthouse. D.J.S. objected, arguing that under §885.60(2) he had a right to be present in the same courtroom as the judge, and he won!
SCOW: Defendant waived, rather than forfeited, right to be present for trial
State v. Michael L. Washington, 2018 WI 3, 1/9/18, affirming a published court of appeals decision; case activity (including briefs)
The supreme court determines that, despite the absence of any colloquy, a defendant who was not present for his trial waived his statutory right to be there.
State v. Michael L. Washington, 2016AP238-CR, petition for review granted 4/10/17
Review of a published court of appeals decision; case activity (including briefs)
Issue:
Whether a defendant may, by voluntary absence or other conduct, waive the statutory right to be present at trial before the trial has begun?
Right to be present at trial waived
State v. Michael L. Washington, 2017 WI App 6, petition for review granted 4/10/17, affirmed, 2018 WI 3; case activity (including briefs)
Michael Washington was set to go on trial for burglary and obstructing an officer. On the morning of the first day of trial, before voir dire, Washington began complaining about his attorney, engaged in a contentious dialogue with the judge, and then “semi was removed and semi left on his own.” Voir dire and trial went on without him; he was occasionally contacted in his jail cell and refused to come back to the courtroom. He was convicted, and on appeal argues that his statutory (as opposed to constitutional) right to presence was violated because the statutory conditions for waiving that right were not met.
SCOW curtails defendant’s right to be present when a judge questions jurors during trial
State v. Alexander, 2013 WI 70, affirming an unpublished court of appeals decision, 2011AP394-CR; case activity; majority opinion by Justice Gableman; concurrences by Justice Crooks (joined by Chief Justice Abrahmason and Justice Bradley), Justice Ziegler, and separately by Chief Justice Abrahamson.
This decision is alarming. During Alexander’s 1st-degree intentional homicide trial, concerns surfaced about whether, due to possible bias, 2 different jurors should continue serving on the case.
Right to trial by impartial jury – seating of juror not actually summoned
State v. Jacob Turner, 2013 WI App 23; case activity
Addressing an unusual set of facts, the court of appeals holds Turner’s constitutional rights to an impartial jury and due process were not violated by the seating of a juror who had not been summoned for service and who did not disclose that to the court.
A summons for jury duty was sent to “John P.
State v. Demone Alexander, 2011AP394-CR, WSC review granted 11/14/12
on review of unpublished decision; case activity
Issues (composed by On Point)
1. Whether the non-waivable nature of the defendant’s right to personal presence at voir dire, citing, § 971.04(1)(c); State v. Harris, 229 Wis. 2d 832, 839, 601 N.W.2d 682 (Ct. App. 1999), extends to examination of a juror for possible dismissal following selection and swearing-in.
2. Whether the trial court properly dismissed two jurors,
Waiver / Forfeiture of Right: Generally – Right to Presence / Testify; Sentencing: Accurate Information – New Factor
State v. Allen Dell Vaughn, 2012 WI App 129 (recommended for publication); case activity
Waiver / Forfeiture of Right, Generally
Waiver is the intentional relinquishment or abandonment of a known right or privilege; forfeiture is: (1) the failure to object to something without intending to relinquish that which an objection might have preserved and (2) doing something incompatible with the assertion of a right, ¶21, citing State v.
TPR – Right to Meaningful Participation – Lack of Objection
Veronica K. v. Michael K., 2012AP197, District 1, 10/10/12
court of appeals decision (1-judge, ineligible for publication); case activity
Michael K., incarcerated at the time of this TPR trial, appeared by audio-video hookup. He argues that his due process right to meaningful participation, State v. Lavelle W., 2005 WI App 266, ¶2, 288 Wis. 2d 504, 708 N.W.2d 698, in light of his numerous contemporaneous complaints he couldn’t hear the proceedings.