On Point blog, page 2 of 24
COA affirms TPR jury verdict based on harmless error analysis
C.T.L. v. M.L.K., 2023AP402, District III, 7/11/23, 1-judge decision ineligible for publication; case activity (briefs not available)
The court of appeals confronts two alleged errors stemming from M.L.K.’s TPR jury trial and affirms based on harmless error.
SCOW takes up §904.04(2)(b) and the “greater latitude” rule
State v. Morris V. Seaton, 2021AP1399-CR, certification granted 3/24/23; remanded, 2023 WI 69;District 2; case activity (including briefs) case activity (including briefs)
Question presented (from the court of appeals’ certification):
In light of the 2014 amendment of WIS. STAT. § 904.04(2)(b) (2019-20), codifying and expanding the “greater latitude” rule and the Wisconsin Supreme Court’s decision in State v. Dorsey, 2018 WI 10, ¶¶23-25, 379 Wis. 2d 386, 906 N.W.2d 158, interpreting and applying that amendment, are State v. Alsteen, 108 Wis. 2d 723, 324 N.W.2d 426 (1982), and State v. Cofield, 2000 WI App 196, 238 Wis. 2d 467, 618 N.W.2d 214, still controlling law as they relate to the admissibility of prior nonconsensual sexual wrongs in cases involving an adult victim of an alleged sexual assault where consent is the primary issue?
COA asks SCOW to clarify §904.04(2)(b) and the “greater latitude” rule
State v. Morris V. Seaton, 2021AP1399-CR, certification filed 2/8/23, certification granted, 3/24/23, remanded, 2023 WI 69;District 2; case activity (including briefs)
Question presented (from the court of appeals’ certification):
In light of the 2014 amendment of WIS. STAT. § 904.04(2)(b) (2019-20), codifying and expanding the “greater latitude” rule and the Wisconsin Supreme Court’s decision in State v. Dorsey, 2018 WI 10, ¶¶23-25, 379 Wis. 2d 386, 906 N.W.2d 158, interpreting and applying that amendment, are State v. Alsteen, 108 Wis. 2d 723, 324 N.W.2d 426 (1982), and State v. Cofield, 2000 WI App 196, 238 Wis. 2d 467, 618 N.W.2d 214, still controlling law as they relate to the admissibility of prior nonconsensual sexual wrongs in cases involving an adult victim of an alleged sexual assault where consent is the primary issue?
Defense win! Circuit court properly excluded other acts as propensity evidence
State v. Clinton D. Clucas, 2022AP965, 12/30/22, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
This is a pretrial state’s appeal under Wis. Stat. § 974.05(1)(d)2.. The trial court excluded three of the four prior incidents the state proposed to offer as evidence in Clucas’s trial for disorderly conduct with the domestic abuse enhancer. The court of appeals affirms, concluding the state’s proffered “permissible purpose” for the evidence is really just propensity by another name.
Defense win: New OWI trial ordered because of erroneous admission of evidence of defendant’s prior hit-and-run conviction
State v. Marty S. Madeiros, 2021AP405-CR, District 4, 10/27/22 (not recommended for publication); case activity (including briefs)
Evidence of Madeiros’s prior hit-and-run conviction was admitted at his trial on OWI 5th, over his objection. This other-acts evidence was inadmissible because it wasn’t probative of any non-propensity purpose and the error in admitting the evidence wasn’t harmless, so Madeiros is entitled to a new trial.
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.
Exclusion of evidence didn’t violate defendant’s right to present defense; instruction on self defense adequately instructed the jury
State v. Sergio Moises Ochoa, 2022 WI App 35; case activity (including briefs)
Ochoa, charged with two counts of first degree intentional homicide, claimed self defense. The court of appeals rejects his claims that the circuit court violated his right to present his defense by excluding certain evidence he wanted to present. The court also rejects his claim that the circuit court erred by refusing to modify the pattern jury instruction applicable to his case.
COA rejects some interesting challenges to denial of suppression in OWI case
State v. Jennifer A. Jenkins, 2020AP1243-CR, 3/1/22, District 3 (1-judge opinion, ineligible for publication); case activity (including briefs)
Jenkins, convicted of OWI 2nd, raised some interesting and unusual challenges to the trial court’s order denying her motion to suppress. (1) The arresting officer’s testimony was incredible as a matter of law. (2) He unlawfully stopped her car outside of his jurisdiction. And (3) her blood draw was painful, inordinately long, and therefore unreasonable. The court of appeals rejected all of them.
Defense win! COA holds failure to investigate prior false allegation was ineffective
State v. Shane Allan Stroik, 2022 WI App 11; case activity (including briefs)
A jury convicted Stroik of the sexual assault of a then-five-year old girl, “Amy,” the daughter of his girlfriend. Postconviction, Stroik brought a slew of claims for a new trial; the circuit court rejected them all. The court of appeals now holds that trial counsel performed deficiently in not obtaining a report from child protective services detailing an accusation Amy had made about her cousin a few months before she accused Stroik–an accusation about an assault quite similar in its details to the one she would later say Stroik committed. The court also finds a reasonable probability that this evidence would have resulted in an acquittal, and thus grants Stroik a new trial.
COA upholds probable cause finding to request PBT
State v. Michael T. Paczkowski, 2021AP340, 9/29/21, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)
Paczkowski crashed his motorcycle, and responding deputies requested that he take a preliminary breath test. He agreed and blew a .149. The circuit court held that he deputies lacked the requisite probable cause to ask for the test, but the court of appeals disagrees and reverses.