On Point blog, page 2 of 11
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State v. Ronald Lee Gilbert, 2019AP2182, 6/22/21, District 1 (not recommended for publication); case activity (including briefs)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.
COA finds another exception to the Haseltine rule
State v. Richard L. Pringle, 2020AP6-CR, 11/17/20, District 3 (not recommended for publication); case activity (including briefs)
No witness, expert or otherwise, may give an opinion that a mentally competent witness is telling the truth. State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984). This case, which the court of appeals calls “close,” holds that an expert may give an opinion that a category of individuals generally lacks the sophistication to concoct a sexual assault claim.
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State v. Pedro R. Mendoza, III, 2018AP2325-Cr,10/6/20, District 1 (not recommended for publication); case activity (including briefs)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.
COA: Judge who witnessed violation of sequestration order cured problem by striking witness
State v. M.E., 2019AP2228, 9/1/2020, District 1 (one-judge decision; ineligible for publication); case activity
M.E. was adjudicated delinquent after a bench trial. During the trial, the judge overheard a conversation between a state’s witness and the prosecutor that led her to believe her sequestration order had been violated. M.E. argues the judge was disqualified because she was now a witness in her own case; the court of appeals concludes she cured any problem by striking the witness’s testimony.
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.
Speedy trial, incompetence to go pro se, and freedom of religion claims fail on appeal
State v. Maries D. Addison, 2018AP55-57-CR, 3/26/19, District 1 (not recommended for publication); case activity (including briefs)
The court of appeals agreed that the 17-month delay in bringing Addison to trial was presumptively prejudicial, but based on the unique facts of this case, it held that his speedy trial rights weren’t violated. Addison did a fine job representing himself (he got “not guilty” verdicts on 5 of 22 counts) so his “incompetency to proceed pro se” claim went nowhere. Plus his freedom of religion claim (right to have a Bible with him during trial) failed because his argument was insufficiently developed.
Mother’s testimony didn’t vouch for daughter’s honesty in violation of Haseltine rule
State v. Frederick Eugene Walker, 2018AP186-CR, District 1, 11/27/18 (not recommended for publication); case activity (including briefs)
Walker challenges his child sexual assault conviction, arguing the complaining witness’s mother improperly vouched for her daughter’s honesty. He also argues the trial court wrongly excluded evidence of the complaining witness’s sexual activity with another person. The court of appeals rejects his claims.
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:
Defense evidence properly excluded for lack of foundation
State v. Scott F. Ufferman, 2016AP1774-CR, District 3, 11/14/17 (one-judge decision; ineligible for publication); case activity (including briefs)
Ufferman complains the trial court’s evidentiary rulings improperly stymied his defense against the charge of operating with a detectable amount of THC. The court of appeals holds the trial court’s rulings were correct.
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.