On Point blog, page 13 of 68
Challenges to search warrant rejected
State v. Andrew Anton Sabo, 2017AP2289-CR, District 1, 1/29/19 (not recommended for publication); case activity (including briefs)
Sabo challenges the search warrant that led to the seizure of evidence from his home, arguing that the affidavit in support of the warrant didn’t establish probable cause, that he is entitled to a Franks-Mann hearing because the affidavit contained false information, and that the identity of the citizen informant who was the source of much of the information in the affidavit should be disclosed because there are reasons to doubt the informant’s reliability and credibility. The court of appeals disagrees.
Circuit court erred in ordering disclosure of confidential informant
State v. Robert Billings, 2017AP2272-CR, District 1, 1/15/19 (one-judge decision; ineligible for publication); case activity (including briefs)
Billings sought disclosure of the identity of the confidential informant who supplied information that was used to get a search warrant for his apartment. The circuit court granted his request. The circuit court erroneously exercised its discretion because it didn’t apply the correct legal standard.
Court of appeals sacks newly-discovered evidence and other claims to affirm homicide conviction
State v. Danny L. Wilber, 2016AP260, 12/26/18, District 1 (not recommend for publication); case activity (including briefs)
“This case involves a dual tragedy: the death of one innocent man and the conviction of another.” (Initial Brief at 1). Not one of the many eyewitnesses to this homicide, which occurred during a large house party, saw Wilber shoot Diaz, the deceased. In fact, Diaz was shot in the back of the head and fell face first toward Wilber, not away from him. The State’s theory was that the shot spun Diaz around causing him to fall toward the shooter. It offered no expert to prove that this was possible.
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State v. Frederick Eugene Walker, 2018AP186-CR, District 1, 11/27/18 (not recommended for publication); case activity (including briefs)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.
Failure to develop defendant’s testimony, object to hearsay didn’t prejudice defense
State v. Akim A. Brown, 2017AP1332-CR, District 1, 11/6/18 (not recommended for publication); case activity (including briefs)
Brown, charged with second degree sexual assault of L.S., testified their sexual encounter was consensual. He argues trial counsel was ineffective for failing to elicit from him certain testimony that would have helped show the encounter was consensual and for failing to object to testimony about L.S.’s prior consistent statements. The court of appeals concludes counsel’s shortcomings didn’t prejudice Brown’s defense.
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.”
Video seems to show white robber in state’s other-acts evidence; COA, over dissent, upholds conviction of black defendant
State v. Darrin L. Malone, 2017AP680-CR, 9/26/18, District 2 (not recommended for publication); case activity (including briefs)
The disputed image is below. It’s of a similar robbery three days before the robbery for which Malone was convicted of felony murder (the other robber in that latter robbery–who testified against Malone–admitting shooting and killing the gas station clerk). The state showed the video of that earlier robbery to the jury, hoping to convince them that Malone did that one, and thus likely did the one he was being tried for, too. Showed it, that is, except for the 10 seconds including this frame, which seems to show a white person’s hand on the robber the state claimed was Malone. Malone is black.
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.
Court of appeals rejects multiple challenges to TPR
State v. R.D.J., 2017AP547, 8/7/18, District 1 (one-judge decision; ineligible for publication); case activity
R.D.J. appeals the termination of his parental rights to his daughter, T.S.J. He argues that his lawyer was ineffective for not challenging the state’s expert’s report on Daubert and undue prejudice grounds, that his due process rights were violated because T.S.J.’s removal from the home made it impossible for him to show a substantial parental relationship, and that the CHIPS order itself established that such a relationship existed.
Witness ID of defendant sitting with two others wasn’t a “showup”; no IAC for not getting expert on eyewitness reliability
State v. Melvin Lidall Terry, 2017AP1625, 8/7/18, District 1 (not recommended for publication); case activity (including briefs)
Police arrested Terry, his girlfriend Carter, and his brother X.C. soon after, and in the vicinity of, a fatal shooting. The police seated the three on the curb and directed one man who had witnessed the shooting to “look over and identify who it was”; he identified Terry.