On Point blog, page 1 of 5
Counsel performed deficiently, failed to object to GAL’s closing argument at TPR trial
Chippewa County Dep’t of Health and Human Servs. v. J.W.., 2021AP1986, 7/19/22, District 3, (1-judge opinion, ineligible for publication); case activity
“Janine” raised an insufficient evidence claim and several ineffective assistance of counsel claims in her appeal from an order terminating her parental right to her son. This post focuses on two of the IAC claims. Counsel failed to object to (1) portions of the county social worker’s testimony, and (2) new information that the GAL introduced during closing statements.
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.
Expert testimony citing retrograde extrapolation of BAC was admissible
St. Croix County v. Kelly M. Lagerstrom, 2019AP928, District 3, 8/10/21 (one-judge decision; ineligible for publication); case activity (including briefs)
As in State v. Giese, 2014 WI App 92, 356 Wis. 2d 796, 854 N.W.2d 687, retrograde extrapolation testimony from a toxicologist was admissible as evidence of Lagerstrom’s possible blood alcohol content around the time the state alleged he drove his car into a ditch.
SCOW: Evidence from Fitbit device is admissible without expert testimony on foundation, reliability
State v. George Steven Burch, 2021 WI 68, 6/29/21, on certification from the court of appeals, affirming a judgment of conviction; case activity (including briefs)
The circuit court properly exercised its discretion in allowing the state to introduce evidence relating to Fitbit data without requiring expert testimony on the reliability of the device.
No error in admitting opinion testimony of case manager in TPR trial
State v. C.A.A., 2020AP1194, District 1, 10/13/20 (one-judge decision; ineligible for publication); case activity
At the trial on the petition to terminate C.A.A.’s parental rights, the case manager handling the CHIPS case pertaining to C.A.A.’s child testified that, in her opinion, C.A.A. would not likely satisfy the conditions of return under the CHIPS order within the 9-month period prescribed by § 48.415(2)(a)3. (2015-16) (a requirement eliminated by 2017 Wis. Act 256). (¶6 & ¶9 n.3). The court of appeals holds this was admissible lay opinion testimony.
Statements driver made before arrest admissible; so was retrograde extrapolation testimony
State v. Christopher J. Durski, 2018AP1750-CR, District 2, 8/21/19 (one-judge decision; ineligible for publication); case activity (including briefs)
Durski was arrested at a motel, where he had decamped after a family dispute. In investigating the family dispute police learned Durski drank alcohol before leaving for the motel, so they tracked him down. Durski wasn’t in custody during the officers’ initial questioning of him at the motel, so his statements were admissible despite the lack of Miranda warnings. So was the state’s retrograde extrapolation evidence.
Detective’s narrative of events shown on surveillance videos properly admitted under lay opinion rule
State v. Johnnie Lee Tucker, 2017AP840-CR, District 1, 8/28/18 (not recommended for publication); case activity (including briefs)
Applying State v. Small, 2013 WI App 117, 351 Wis. 2d 46, 839 N.W.2d 160, and the lay opinion rule, § 907.01, the circuit court properly allowed a detective to narrate the events recorded on multiple surveillance cameras based on his having viewed the recordings “many times.”
Circuit court’s expert testimony rulings upheld
State v. Natalie N. Murphy, 2017AP1559-CR, 8/16/18 (not recommended for publication); case activity (including briefs)
To no avail, Murphy challenges the circuit court’s decision to exclude her expert’s testimony and its decision to allow certain testimony from the state’s expert.
Child protective services case worker properly allowed to give lay opinion testimony
State v. B.D.H., 2017AP2390 & 2017AP2391, District 1, 3/6/18 (one-judge decision; ineligible for publication); case activity
At B.D.H.’s TPR trial her case worker testified that, in her opinion, B.D.H. wouldn’t be able to meet the conditions set by a CHIPS order for the return of her children within the statutory timeframe. The testimony was admissible under § 907.01, which allows lay opinion testimony if it is “(1) [r]ationally based on the perception of the witness[;] (2) [h]elpful to a clear understanding of the witness’s testimony or the determination of a fact in issue,” and “(3) [n]ot based on scientific, technical, or other specialized knowledge….”
SCOW to review IAC, sentencing, and cross-appeal issues
State v. Anthony R. Pico, 2015AP1799-CR, petition for review granted 10/10/17; case activity (including briefs)
Issues (composed by On Point):
1. Did the Court of Appeals apply the proper standard of review to the trial court’s findings of fact regarding trial counsel’s conduct and strategy?
2. Did trial counsel perform deficiently by failing to investigate Pico’s serious head injury, and did that deficient performance prejudice Pico in pretrial proceedings and at trial?
3. Did the sentencing court impermissibly burden Pico’s privilege against self-incrimination?
4. Did the Court of Appeals err in concluding that Pico waived issues not raised by cross-appeal?
5. Is it permissible for a postconviction court to admit and consider expert testimony by another criminal defense attorney regarding the conduct of trial counsel?