On Point blog, page 30 of 68
Self-incrimination — requiring defendant to show physical characteristic to jury. Closing argument — state’s reference to defendant’s failure to call witnesses. Prior inconsistent statement — witness’s lack of recollection
State v. Ramon G. Gonzalez, 2012AP1818-CR, District 1, 7/23/13; court of appeals decision (not recommended for publication), petition for review granted, 1/19/14, affirmed, 2014 WI 124; case activity
Self-incrimination — requiring defendant to show physical characteristic to jury
Where inmate victim of battery by another prisoner identified one of his assailants as an inmate “with platinum teeth”
Ineffective assistance of counsel — failure to object to evidence. Circuit court’s discretion to admit other acts evidence and child victim’s video statement
State v. Roy H. Beals, 2012AP1079-CR, District 2/1, 7/9/13; court of appeals decision (not recommended for publication); case activity
Ineffective assistance of counsel
Trial counsel in a sexual assault prosecution was not ineffective for failing to object to portions of two different video statements of the child victim (one from 2007, the other from 2009) because the evidence did not prejudice Beals. Trial counsel did object to the first 10 minutes of the 2007 video until after it had been played,
Wisconsin Supreme Court declines to overrule State v. Shiffra, but divides on remedy “in this case”
State v. Samuel Curtis Johnson, III, 2013 WI 59 (per curiam), affirming, as modified, an unpublished court of appeals opinion; reconsideration granted, 2014 WI 16 (per curiam); Justices Prosser and Gableman not participating; case activity
(Note: On July 22, 2013, both Johnson and the state filed motions for reconsideration of the court’s original decision;
Repeated child sexual assault, § 948.025: instruction on first degree child sexual assault as lesser-included; other acts evidence; date of offense; ineffective assistance of counsel
State v. Robert T. Warriner, 2012AP244-CR, District 2/1, 7/2/13; court of appeals decision (not recommended for publication); case activity
Instruction on first degree child sexual assault as lesser-included of repeated child sexual assault
At trial the child testified that Warriner sexually assaulted her on only two occasions, so the trial court agreed, over Warriner’s objections, to read the instruction for first-degree sexual assault of a child, § 948.02(1).
Reference to defendant’s right against self-incrimination; newly discovered evidence — recantation
State v. Haven Pettigrew, 2012AP1860-CR, District 2/1, 7/2/13; court of appeals decision (not recommended for publication); case activity
Reference to right against self-incrimination
Defense counsel revealed her theory of defense for the first time in her opening statement. During direct examination of the lead detective if that was the first time he had heard that theory. Defense counsel objected before the question was even finished, and the court sustained the objection,
OWI — foundation for expert testimony regarding BAC at time of driving
City of Port Washington v. David A. Thompson, 2012AP2500, District 2, 6/26/13; court of appeals opinion (1-judge; ineligible for publication); case activity
The trial court did not err in allowing Hackworthy, the state’s chemical test expert, to give her opinion that Thompson’s BAC at the time of driving was 0.15 based on average alcohol elimination rates and the results of a blood test taken about an hour after driving (with a result of 0.15) and a breath test taken about two hours after driving (with a result of 0.11).
Substitution of judge — § 971.20(4),(5); reassignment of original judge does not make the judge “new” for substitution purposes. Admission of evidence — limiting the playing of audio recordings. Armed robbery, § 943.32 — sufficiency of the evidence.
State v. Keith M. Bohannon, 2013 WI App 87; case activity
Substitution of judge; “new” judge under § 971.20(5)
When a case is reassigned from the original judge to a second judge and then reassigned again back to the first judge, the first judge is the “original” judge assigned to the case under § 971.20(4), not a “new” judge under § 971.20(5). Therefore, a motion to substitute the original judge had to be filed before the arraignment,
Is cell tower tracking “junk science”?
Now that Wisconsin follows Daubert, perhaps you can challenge the cell tower tracking evidence the State plans to present in your case as “junk science.” Click here for an ABA Journal story about how to do it. According to defense expert Michael Cherry: “No one who understands the relevant science would ever claim that data from a single cell tower can reliably be used to specify the location of a caller at the time a particular call is made.” Click here for the decision and order denying the admission of cell tower tracking evidence in U.S.
Ineffective assistance of counsel claim rejected; multiple alleged errors either not prejudicial or not deficient
State v. Ronell Howlett, 2012AP1672-CR, District 1, 5/14/13; court of appeals decision (not recommended for publication); case activity
Howlett, a school bus driver, was convicted of three counts of sexual assault of C.A., a nine-year-old child he was responsible for driving. (¶¶1-3, 7). Adopting significant portions of the trial court’s postconviction ruling, the court of appeals rejects his claim that trial counsel was ineffective in the following ways:
- Failing to introduce C.A.’s attendance records: C.A.
Plea withdrawal — newly discovered evidence
State v. Edward Devon Smart, 2012AP1178-CR, District 1, 5/7/13; court of appeals decision (not recommended for publication); case activity
Smart is not entitled to plea withdrawal based on co-actor’s testimony that he coerced Smart to commit the crime because the coercion evidence could have been presented using other witnesses known to defendant before he entered his plea:
¶7 Smart argues that Rushing’s testimony is new because he did not know Rushing would testify that he forced Smart to rob the victims.