On Point: D. Relevance, Ch. 904

State v. Joel M. Hurley, 2015 WI 35, 3/31/15, reversing  an unpublished per curiam court of appeals decision; opinion by Justice Gableman; case activity (including briefs)

Making full use of the “greater latitude of proof” rule, the recent precedent adopting a more liberal approach to admission of other-acts evidence, e.g., State v. Marinez, 2011 WI 12, 331 Wis. 2d 568, 797 N.W.2d 399, State v. Payano, 2009 WI 86, 320 Wis. 2d 348, 768 N.W.2d 832, and the deferential standard of review, the court upholds the admission of other-acts evidence that Hurley had repeatedly sexually assaulted his sister, J.G., when she was between the ages of 8 and 10 years old and he was between the ages of 12 and 14 years old.

State v. Clifton Robinson, 2014AP1575-CR, 3/31/15, District 1 (not recommended for publication); click here for briefs and docket

The court of appeals here rejects a barrage of challenges to Robinson’s conviction for criminal damage to property and armed robbery with use of force–everything from a Batson challenge, to severance issues, to the sufficiency of evidence, to the admission of prejudicial evidence and more.

State v. Tyron James Powell, 2014AP1053-CR, District 1, 3/24/15 (not recommended for publication); click here for docket and briefs

After obtaining two mistrials, Powell probably thought he’d get lucky the third time around. Instead, he got a conviction followed by a court of appeals decision that rejected his arguments on impeachment evidence, on the admission of his prior convictions and on his trial lawyer’s ineffectiveness for failing to file a suppression motion.

County of Taylor v. Dean T. Woyak, 2104AP1463, 2/24/15, District 3 (one-judge opinion, ineligible for publication); click here for briefs

Woyak was convicted of OWI and PAC. He had driven into a ditch and was discovered with beer cans littering his car. He claimed that he drank the alcohol that resulted in a .222 BAC after the accident not before or during driving. Thus, the trial court should not have instructed the jury that it could find him intoxicated based on the results of an alcohol-concentration test performed within 3 hours of driving.

State v. Kyle R. Christoffersen, 2014AP1282, District 2, 1/28/15 (1-judge decision; ineligible for publication); case activity

The judge at Christoffersen’s refusal hearing didn’t violate Christoffersen’s due process rights when it limited cross-examination about the arresting officer’s training on, and administration of, field sobriety tests and refused to allow Christoffersen to make an offer of proof by questioning the officer. (¶¶5-7, 14).

State v. Jose O. Gonzalez-Villarreal, 2013AP1615-CR, District 1, 1/27/15 (not recommended for publication); case activity

The court of appeals rejects Gonzalez-Villarreal’s challenge to his conviction for possessing child pornography based on claims that: his right to a speedy trial was violated; discovery restrictions violated his right to equal protection; other acts evidence was erroneously admitted; the trial court rejected his modified jury instruction on possession; the court erroneously exercised its sentencing discretion.

Practitioners take note. This opinion holds the seeds of controversy.  SCOW’s ruling–that forcing a defendant to bare his teeth to the jury does not violate the 5th Amendment–is not so surprising.  But Chief Justice Abrahamson’s concurrence, which announces the elimination of “opinion conferences” and new restrictions on the preparation of concurring and dissenting opinions seems alarming.

State v. Sean T. Pugh, 2013AP1522-CR, District 3, 10/21/14 (not recommended for publication); case activity

If the trial court erred in admitting evidence that Pugh had a prior conviction for an offense similar to the ones he was on trial for, the error was harmless, given the overwhelming evidence against him. In addition, the trial court properly allowed the state to amend the information to add party-to-a-crime modifiers because Pugh wasn’t prejudiced by the amendment.

State v. John M. Lattimore, 2013AP911-CR, District 4, 9/11/14 (not recommended for publication); case activity

Lattimore was convicted of 2nd-degree sexual assault with use of force and false imprisonment against S.M.  He appealed trial court decisions to: (1) join a count of 3rd-degree sexual assault against a different victim, M.H., to S.M.’s trial, (2) exclude the text of a Facebook message sent by S.M.’s brother to the defendant right after the assault, and (3) admit testimony about S.M.’s personality change after the assault.  He had no luck with the court of appeals.

State v. Luis M. Rocha-Mayo, 2014 WI 57, affirming an unpublished court of appeals decision; 7/11/14; majority opinion by Justice Crooks; case activity

Why tackle thorny legal issues surrounding Wis. Stat. §343.303’s prohibition against the use of PBTs at OWI trials when you can decide the case on harmless error grounds?  In this case, the PBT was ordered and administered by ER staff, not law enforcement. SCOW gets to pick and choose its cases. So when it grants review, the parties, their lawyers, the lower courts, and the bar hope the court will decide the legal issues, not re-review the evidence presented to the jury.  This fractured decision deserves a close look in order to understand what has and has not been decided about the use of PBTs in OWI trials.