On Point blog, page 1 of 5
Defense win: Circuit court erred in preventing impeachment of witness with prior false statement to police
State v. Dennis C. Strong, Jr., 2020AP1197-CR, District 3, 3/8/22 (one-judge decision; ineligible for publication); case activity (including briefs)
In a decision that provides a nice primer about using specific instances of a witness’s to attack the witness’s character for truthfulness § 906.08(2), the court of appeals holds the circuit court erroneously barred Strong from cross examining the complaining witness about a prior false statement she’d made to the police four months earlier in a different case.
Evidence bearing on witness credibility discovered post-trial doesn’t require new CHIPS trial
State v. M.T.W., 2021AP420-FT, District 2, 8/11/21 (one-judge decision; ineligible for publication); case activity
Information that goes to a witness’s character for truthfulness doesn’t meet the standard under § 48.46(1) for newly discovered evidence that warrants a new trial.
Defense win! Trial counsel ineffective for failing to challenge inaccurate cell site claims, calling client a “scumbag”
State v. Ronald Lee Gilbert, 2019AP2182, 6/22/21, District 1 (not recommended for publication); case activity (including briefs)
When last we saw this sex-trafficking case, the court of appeals had reversed the trial court’s denial of a Machner hearing on three claims. They were that Gilbert’s trial counsel was ineffective for failing to: challenge the admission of incorrect cell site location information (CSLI) testimony; demand discovery before trial; and impeach the State’s star witnesses with prior inconsistent statements. The discovery claim went away based on the subsequent Machner hearing testimony, but the court of appeals now again reverses the circuit court’s holdings on the other two, and orders a new trial.
Defense win! Trial counsel should have objected to gang affiliation references and introduced other evidence
State v. Pedro R. Mendoza, III, 2018AP2325-Cr,10/6/20, District 1 (not recommended for publication); case activity (including briefs)
A jury convicted Mendoza of 1st degree recklessly endangering safety and 1st degree endangering safety when he shot into a car occupied by H.V. and M.M.C. Mendoza claimed his trial counsel was ineffective for failing to: (1) seek exclusion of his history with the Latin Kings, (2) seek admission of evidence that H.V. and M.M.C. had previously intimidated witnesses and conspired to falsify testimony; and (3) introduce expert testimony regarding his PTSD to help show that he shot in self-defense. The circuit court ordered a Machner hearing, but denied relief. The court of appeals issued a rare reversal on all 3 ineffective assistance of counsel claims and remanded the case for a new trial.
Seventh Circuit’s rare habeas grant notes COA misapplication of Strickland and upbraids state for false claims about the record
Terez Cook v. Brian Foster, Warden, 7th Circuit Court of Appeals No. 18-2214, 1/29/2020
Pursuing a federal writ of habeas corpus is always a long shot; in non-capital cases fewer than 1% of petitions are successful. Terez Cook gets it done here, convincing the Seventh Circuit his lawyer was ineffective at his trial for a home-invasion robbery (and that the Wisconsin court of appeals’ decision to the contrary was not just wrong, but unreasonable). The federal court is puzzled by a few aspects of our state court’s denial of Cook’s claims. But the thing that seems to push that denial over the line into unreasonableness–AEDPA‘s stringent requirement for habeas relief–is that it got a crucial fact wrong. The state court’s opinion relies on a confession by Cook–a confesssion for which there’s apparently no evidence. How did our court go astray? Well, the state described the (non-existent) confession in its brief, and then Cook’s direct-appeal counsel apparently didn’t check the facts, and neither did the court of appeals.
Changes to rules of evidence regarding impeachment, bias take effect
The supreme court’s Order 16-02A, 2017 WI 92, effective January 1, 2018, amends some rules of evidence that apply frequently in criminal cases:
SCOW to address claim for a new trial based on newly discovered impeachment evidence
State v. David McAlister, Sr., 2014AP2561, petition granted 9/11/17; affirmed 4/18/18; case activity (including briefs)
Issues (copied from petition for review)
1. The central issue at trial was whether McAlister participated in the charged robberies. The state’s evidence on that point consisted entirely of the allegations of two confessed participants seeking to mitigate the consequences of their own misconduct. The jury knew that the state’s witnesses had a motive to falsely accuse McAlister but those witnesses denied under oath having done so. Under these circumstances, is newly discovered evidence from three separate witnesses swearing that the state’s witnesses admitted prior to trial that they intended to falsely accuse McAlister “cumulative” and “merely tend to impeach the credibility of witnesses” such that it could not support a newly discovered evidence claim?
2. Whether the allegations of McAlister’s §974.06 motion were sufficient to require a new trial and therefore an evidentiary hearing on his claim.
Trial court’s evidentiary rulings weren’t erroneous
State v. Victoria Ward, 2015AP2638-CR, 3/21/17, District 1 (not recommended for publication); case activity (including briefs)
To no avail, Ward challenges two evidentiary rulings the circuit court made at her trial on charges of being party to the crimes of maintaining a drug house and possession of heroin with intent to deliver.
No IAC for implying prior OWIs; stipulation to three priors valid; no issue preclusion on number of priors
State v. Bruce T. Henningfield, 2015AP1824-CR, 3/15/17 (not recommended for publication); case activity (including briefs)
Bruce Henningfield was convicted by a jury of OWI and PAC counts, and was sentenced on the OWI as a tenth or subsequent offense. He raises three issues related to his prior convictions; the court rejects them all.
Counsel not ineffective in handling impeachment of defendant, defense witness with prior convictions
State v. Christopher J. McMahon, 2015AP2632-CR, District 3, 1/18/17 (one-judge decision; ineligible for publication); case activity (including briefs)
McMahon’s trial attorney wasn’t ineffective for failing to shield McMahon and another defense witness from impeachment using a prior conviction.