On Point blog, page 4 of 68
COA holds challenge to late ch. 51 extension hearing judicially estopped; says hearsay statements not plain error
Outagamie County v. C.J.A., 2022AP230, 2/17/23, District 3 (one-judge decision; ineligible for publication); case activity
“Catherine” appeals the extension of her ch. 51 commitment. The recommitment hearing was originally set for a few days before her previous extension would expire. But three days before that scheduled hearing, Catherine requested an independent examination. She, the court, and the county agreed to a “stipulation for temporary extension to commitment” for 60 days. The final hearing was held near the end of this 60 days, 57 days after her commitment had been set to expire before the stipulation.
COA asks SCOW to clarify §904.04(2)(b) and the “greater latitude” rule
State v. Morris V. Seaton, 2021AP1399-CR, certification filed 2/8/23, certification granted, 3/24/23, remanded, 2023 WI 69;District 2; case activity (including briefs)
Question presented (from the court of appeals’ certification):
In light of the 2014 amendment of WIS. STAT. § 904.04(2)(b) (2019-20), codifying and expanding the “greater latitude” rule and the Wisconsin Supreme Court’s decision in State v. Dorsey, 2018 WI 10, ¶¶23-25, 379 Wis. 2d 386, 906 N.W.2d 158, interpreting and applying that amendment, are State v. Alsteen, 108 Wis. 2d 723, 324 N.W.2d 426 (1982), and State v. Cofield, 2000 WI App 196, 238 Wis. 2d 467, 618 N.W.2d 214, still controlling law as they relate to the admissibility of prior nonconsensual sexual wrongs in cases involving an adult victim of an alleged sexual assault where consent is the primary issue?
Circular reasoning upheld as mother testifies about father’s suspected heroin use during TPR trial
N.D. v. E.S., 2022AP1084, District 2, 01/25/23 (one-judge decision; ineligible for publication); case activity
Nancy (N.D.) petitioned to terminate Ed’s (E.D.’s) parental rights on the grounds that he abandoned their daughter, Kim. See Wis. Stat. § 48.415(1). At trial, Ed asserted a “good cause” defense that Nancy prevented him from having contact with Kim, and in response, Nancy was allowed to testify that the reason for her interference was Ed’s “heroin use.” Despite the fact that Nancy had no personal knowledge of Ed’s suspected heroin use, the circuit court ruled, and the court of appeals agrees, that the fact that Ed admitted to being drug tested was sufficient foundation for Nancy’s testimony. As a result, Ed’s ineffective assistance of counsel claims related to this evidence fails.
SCOW ignores import of withheld evidence; declares it “immaterial”
State v. Jeffrey L. Hineman, 2023 WI 1, 1/10/23, reversing a per curiam court of appeals opinion, 2020AP226, case activity (including briefs)
At Hineman’s trial for sexual assault of a child, a police officer testified that she believed the child had accused Hineman of touching him several months before her investigation began, and several months before the child made similar statements in a forensic interview. This wasn’t true, and the officer’s police report contradicted her testimony on this point: it said a CPS report had noted no allegations of abuse. But when defense counsel attempted to impeach the officer with her own report, the officer testified that she “didn’t know if” she’d “documented” the alleged prior consistent accusation, and while she “would think [she] would have” written such information in the report, she “might not have.” It would have been easy to prove conclusively that there was no such allegation: counsel just needed the CPS report. But she didn’t have it, because the state–in what it concedes was a violation of its Brady obligations–didn’t turn it over. SCOW now says “eh, who cares?” and reverses the court of appeals’ grant of a new trial.
Defense win! Circuit court properly excluded other acts as propensity evidence
State v. Clinton D. Clucas, 2022AP965, 12/30/22, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
This is a pretrial state’s appeal under Wis. Stat. § 974.05(1)(d)2.. The trial court excluded three of the four prior incidents the state proposed to offer as evidence in Clucas’s trial for disorderly conduct with the domestic abuse enhancer. The court of appeals affirms, concluding the state’s proffered “permissible purpose” for the evidence is really just propensity by another name.
COA rejects slew of challenges to theft conviction
State v. Jeffrey L. Blabaum, 2022AP111, 11/10/2022, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
Blabaum texted his ex and told her to meet him in Dodgeville to retrieve a few personal items she’d left behind when she moved out of the home they shared in Tennessee. He also sent a picture of one of the items, a bench, which appeared to be sitting in a trailer. His text specified that she should “Come alone.”
Defense win: New OWI trial ordered because of erroneous admission of evidence of defendant’s prior hit-and-run conviction
State v. Marty S. Madeiros, 2021AP405-CR, District 4, 10/27/22 (not recommended for publication); case activity (including briefs)
Evidence of Madeiros’s prior hit-and-run conviction was admitted at his trial on OWI 5th, over his objection. This other-acts evidence was inadmissible because it wasn’t probative of any non-propensity purpose and the error in admitting the evidence wasn’t harmless, so Madeiros is entitled to a new trial.
SCOW will decide whether DA improperly commented on defendant’s decision not to testify
State v. Tomas J. Hoyle, 2020AP1876-CR, petition for review of an unpublished opinion granted 9/14/22; case activity (including briefs)
Issue: (adapted from the State’s PFR):
The 5th Amendment prohibits a prosecutor from commenting on defendant’s failure to to the stand. Griffin v. California, 380 U.S. 609, 615 (1965); Bies v. State, 53 Wis. 2d 322, 325-26, 193 N.W.2d 46 (1972). In a case where the defendant exercises his right not to testify, does the prosecution violate this prohibition by telling the jury that the victim’s account is “uncontroverted” and no evidence was offered to dispute it?
COA rejects challenges to admission of psychological report and IAC claim; affirms TPR
State v. T.M., 2021AP1729, 8/16/22, District 1 (1-judge opinion, ineligible for publication); case activity
“Taylor” presented three challenges to the termination of her parental rights to her son: (1) erroneous admission of a psychological examination; (2) ineffective assistance of trial counsel for failure to object to a flawed jury instruction; and (3) insufficient evidence. The court of appeals rejected all of them.
COA affirms trial court’s refusal to permit testimony that OWI arrestee asked for breath test
State v. Travis D. Huss, 2021AP1858, 7/20/22, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)
Huss was stopped at 1 a.m. for going through a flashing red light without stopping. The officer suspected he was impaired and eventually arrested him for OWI. Huss asked the officer to give him a preliminary breath test before she arrested him, but the circuit court excluded evidence of his request from being admitted at trial. The court’s ruling was not an erroneous exercise of discretion.