On Point blog, page 25 of 68
It doesn’t take an expert to make a map using cell phone tower data provided by phone company
State v. Lance Donelle Butler, Jr., 2014AP1769-CR, District 1, 6/9/15 (not recommended for publication); case activity (including briefs)
Using cell phone tower data provided by Butler’s cell phone service provider to make a map of where Butler had used his cell phone on the day of the crime didn’t require “scientific, technical, or other specialized knowledge” under § 907.02(1); thus, the police officers who created the map didn’t need to be qualified as experts under the statute and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Using therapist as part of defense against TPR petition waived therapist-patient privilege
State v. Mary G., 2015AP55, 2015AP56, & 2015AP57, District 1, 6/2/15 (one-judge decision; ineligible for publication); case activity
At the grounds phase of the trial on a TPR petition, the circuit court properly ordered Mary G. to provide the State with notes from her mental health treatment provider and appropriately considered evidence regarding Mary’s failure to manage her medications.
Victim’s inconsistent testimony didn’t make testimony inherently or patently incredible
State v. Brandon L. P-D., 2014AP2785, District 4, 5/14/15 (one-judge decision; ineligible for publication); case activity
The court of appeals rejects Brandon’s arguments that the evidence was insufficient to support his delinquency adjudication for incest because of the victim’s inconsistent testimony. The court also rejects his arguments that the circuit court erred in denying his motion for in camera review of the victmi’s medical records and in excluding evidence of a previous sexual assault of the victim.
SCOW: Evidence of other sexual assaults from 15 years in the past was properly admitted
State v. Joel M. Hurley, 2015 WI 35, 3/31/15, reversing an unpublished per curiam court of appeals decision; opinion by Justice Gableman; case activity (including briefs)
Making full use of the “greater latitude of proof” rule, the recent precedent adopting a more liberal approach to admission of other-acts evidence, e.g., State v. Marinez, 2011 WI 12, 331 Wis. 2d 568, 797 N.W.2d 399, State v. Payano, 2009 WI 86, 320 Wis. 2d 348, 768 N.W.2d 832, and the deferential standard of review, the court upholds the admission of other-acts evidence that Hurley had repeatedly sexually assaulted his sister, J.G., when she was between the ages of 8 and 10 years old and he was between the ages of 12 and 14 years old.
Scattershot attack on conviction for criminal damage to property and armed robbery misses marks
State v. Clifton Robinson, 2014AP1575-CR, 3/31/15, District 1 (not recommended for publication); click here for briefs and docket
The court of appeals here rejects a barrage of challenges to Robinson’s conviction for criminal damage to property and armed robbery with use of force–everything from a Batson challenge, to severance issues, to the sufficiency of evidence, to the admission of prejudicial evidence and more.
Third trial not a charm
State v. Tyron James Powell, 2014AP1053-CR, District 1, 3/24/15 (not recommended for publication); click here for docket and briefs
After obtaining two mistrials, Powell probably thought he’d get lucky the third time around. Instead, he got a conviction followed by a court of appeals decision that rejected his arguments on impeachment evidence, on the admission of his prior convictions and on his trial lawyer’s ineffectiveness for failing to file a suppression motion.
Trial court’s post-verdict meeting with jurors wasn’t error; its exclusion of defendant’s medical records was error, but it was harmless
State v. Wade M. Richey, 2014AP1758-CR, District 3, 3/17/15 (not recommended for publication); case activity (including briefs)
In this prosecution for reckless driving causing great bodily harm and homicide by operating with a detectable amount of a controlled substance, the circuit court erroneously excluded Richey’s medical records from evidence at trial, though the error was harmless. More interesting, perhaps, is the issue arising out of the trial court’s post-verdict meeting with the jury. While it wasn’t plain error for the trial judge to meet with the jury after receiving its verdict, what happened in this case causes the court of appeals to suggest trial judges tread carefully when doing so.
Court of appeals lowers evidentiary threshold for proving “mental deficiency” under Sec. 940.225(2)(c)
State v. Bernard Ikechukwel Onyeukwu, 2014AP518-CR, 2/26/15, District 4 (not recommended for publication); click here for briefs.
The State charged the defendant with 10 counts of sexual assault, 5 of which required proof that the victim suffered from a mental deficiency and that the defendant knew it. The jury acquitted on 6 counts. Just 2 of the convictions required proof of mental deficiency. They spawned interesting grounds for appeal, but this decision just wasn’t up to the task.
Instructing jury on permissive presumption of OWI was A-ok
County of Taylor v. Dean T. Woyak, 2104AP1463, 2/24/15, District 3 (one-judge opinion, ineligible for publication); click here for briefs
Woyak was convicted of OWI and PAC. He had driven into a ditch and was discovered with beer cans littering his car. He claimed that he drank the alcohol that resulted in a .222 BAC after the accident not before or during driving. Thus, the trial court should not have instructed the jury that it could find him intoxicated based on the results of an alcohol-concentration test performed within 3 hours of driving.
Trial counsel held ineffective; DA chastised for taking advantage of deficient performance
State v. Charles C.S., Jr., 2014AP1045, 2/11/15, District 2 (not recommended for publication); click here for docket
Ouch! This is the rare case where the court of appeals found both the deficient performance and the prejudice required for an “ineffective assistance of trial counsel” claim. Such decisions can be hard on the defense attorney, but in this case the DA took a beating.