On Point blog, page 3 of 11
Defense wins on restitution, loses on evidentiary issues
State v. Shawn W. Forgue, 2016AP2414-CR, 5/11/17, District 4 (1-judge opinion; ineligible for publication); case activity (including briefs)
Forgue, convicted of misdemeanor battery and disorderly conduct, appealed the circuit court’s decision to exclude evidence of the victim’s prior violent conduct toward him (i.e. McMorris evidence) and her other bad acts. He also appealed an order setting restitution at $269.50 for the victim’s lost wages and $1,000 to the Crime Victim Compensation Program.
Court of Appeals reverses circuit court’s finding that trial counsel was ineffective
State v. Anthony R. Pico, 2015AP1799-CR, 5/10/17, District 2 (not recommended for publication), petition for review granted 10/10/17, affirmed, 2018 WI 66; case activity (including briefs)
The circuit court granted Pico a new trial on a charge of first degree child sexual assault after concluding Pico’s trial lawyer was ineffective on various grounds. Over a dissent, the court of appeals reverses and reinstates Pico’s conviction.
SCOW: No Haseltine violation where expert tells jury “there’s no indication that victim is not being honest”
State v. Stanley J. Maday, Jr., 2017 WI 28, 4/5/17, reversing a per curiam court of appeals decision, 2015AP366-CR; case activity (including briefs)
This “he said, she said” case resulted in a verdict finding Maday guilty of child sexual assault. Catherine Gainey, the social worker who conducted a “cognitive graphic interview” of K.L., the alleged victim, testified at trial that there “was no indication” that K.L. had been coached or was being dishonest. Maday claimed ineffective assistance of counsel because his lawyer did not object to this Haseltine evidence. SCOW, voting 5-1-2, nixed that claim. The majority, written by Gableman, says Haseltine does not bar “observations of indications of coaching and deceit” that a social worker makes during the course of a forensic interview. It only bars an expert’s subjective opinions about a child’s truthfulness. So expect prosecutors to invoke the magic word “indications” early and often. If you feel like shouting “mayday! mayday!” don’t. The majority may have slammed a door on certain objections to Haseltine evidence, but it has unwittingly flung open a window for defense lawyers.
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State v. Victoria Ward, 2015AP2638-CR, 3/21/17, District 1 (not recommended for publication); case activity (including briefs)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.
Habeas petitioner entitled to hearing on “textbook” improper vouching claim
Joseph J. Jordan v. Randall R. Hepp, 7th Circuit Court of Appeals No. 14-3613, 2016 WL 4119862, 8/3/16
Jordan claims the Wisconsin courts unreasonably applied clearly established federal law when they held that he was not denied the right to represent himself and that his trial lawyer was not ineffective for failing to object to the prosecutor’s improper vouching for a police witness’s credibility. The Seventh Circuit okays the state courts’ decision on self-representation but orders a hearing on Jordan’s ineffective assistance claim.
SCOW disciplines lawyer for “offering,” and then failing to correct, witness’s false testimony
OLR v. John Kenyatta Riley, 2016 WI 70, 7/15/16; case activity (including briefs)
Leaving us with another splintered decision as the current term comes to its end, a majority of the supreme court votes to publicly reprimand an attorney for “offering” false testimony from his client and then failing to take reasonable measures to correct the testimony. The precedential value of the opinion is uncertain, and perhaps nil, as there’s no majority rationale for the decision and it involves a previous version of the relevant ethical rule; nonetheless, every lawyer who calls witnesses should be aware of it and contemplate what it might portend.
Counsel wasn’t ineffective for failing to file Shiffra motion
State v. Tony Phillip Rogers, 2015AP921-CR, 4/12/16, District 1 (not recommended for publication); case activity (including briefs)
Though the complainant in Rogers’s child sexual assault prosecution made statements to her mother about “hearing voices” and needing mental health assistance, trial counsel was not deficient for failing to move for an in camera review of her treatment records because he could not have made the materiality showing needed under State v. Shiffra, 175 Wis. 2d 600, 608-09, 499 N.W.2d 719 (Ct. App. 1993), and State v. Green, 2002 WI 68, ¶¶32-34, 253 Wis. 2d 356, 646 N.W.2d 298.
Testimony that 90% of child sexual assault reports are true didn’t clearly vouch for victim’s credibility
State v. Esequiel Morales-Pedrosa, 2016 WI App 38; case activity (including briefs)
The case law prohibiting vouching by one witness for the credibility of another witness didn’t clearly cover a forensic interviewer’s testimony that 90% of child sexual assault reports are true. Thus, trial counsel wasn’t deficient for failing to object to the testimony.