On Point: G. Closing argument

State v. Catherine E. Edwards, 2023AP1042-CR, 3/6/25, District IV (not recommended for publication); case activity

Edwards’s appeal focuses on the definition of “lewd exhibition of intimate parts” and the state’s closing arguments as to child pornography. COA rejects Edwards’s arguments on appeal and affirms her convictions for possession of child pornography.

City of Whitewater v. Douglas E. Kosch, 2022AP800, District II, 9/13/23, 1-judge decision ineligible for publication; case activity (including briefs)

Although Kosch throws the kitchen sink at his OWI and refusal convictions, COA methodically works through his myriad challenges on a path toward affirmance.

State v. Conrad M. Mader, 2022AP382-CR, District 2, 6/7/23 (recommended for publication); case activity (including briefs)

Mader was convicted of repeated sexual assault of his stepdaughter. He argues his trial lawyer was ineffective in numerous ways. The court of appeals agrees trial counsel performed deficiently in three respects, but holds trial counsel’s mistakes weren’t prejudicial and therefore Mader isn’t entitled to a new trial.

State v. Tomas Jaymitchell Hoyle, 2023 WI 24, 3/31/22, reversing an unpublished court of appeals opinion; case activity (including briefs)

This split decision is important for two reasons. First, it authorizes the State to penalize the defendant for exercising his 5th Amendment right to remain silent at trial. Second, it foreshadows how Justice Hagedorn will likely rule in cases involving a broad range of criminal and civil constitutional rights that were established after the framers wrote the United State Constitution.

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.

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?

State v. Tomas Jaymitchell Hoyle, 2020AP1876-CR, 4/26/22, District 3 (not recommended for publication); case activity (including briefs)

Hoyle chose to remain silent at his trial for child sexual assault. During closing arguments, the prosecutor repeatedly argued that the testimony from “Hannah” (the complaining witness) was “uncontroverted” and told the jury it had “heard no evidence” and that there was “absolutely no evidence” disputing her account of the alleged sexual assault. Under the circumstances of this case, the court of appeals holds that the prosecutor’s arguments violated Hoyle’s Fifth Amendment rights.

State v. Ronald Lee Gilbert, 2019AP2182, 6/22/21, District 1 (not recommended for publication); case activity (including briefs)

When last we saw this sex-trafficking case, the court of appeals had reversed the trial court’s denial of a Machner hearing on three claims. They were that Gilbert’s trial counsel was ineffective for failing to: challenge the admission of incorrect cell site location information (CSLI) testimony; demand discovery before trial; and impeach the State’s star witnesses with prior inconsistent statements. The discovery claim went away based on the subsequent Machner hearing testimony, but the court of appeals now again reverses the circuit court’s holdings on the other two, and orders a new trial.

Actually, the DA argued:  “My job is to show the truth. On the other hand, the defense attorneys’ jobs are to manipulate the truth. Their job is to shroud the truth. Their job is [to] confuse jurors. Their job is to do whatever they have to—without regard for the truth—to get a not guilty verdict.” The South Carolina Supreme Court had the good sense to overturn this defendant’s conviction for order and order a new trial.

State v. Kyle Lee Monahan, 2014AP2187, petition for review of an unpublished COA decision granted 11/13/17; case activity (including briefs)

The parties and the state agree that the circuit court erred in excluding Kyle Monahan’s proffered GPS evidence from his trial; the only dispute in this appeal is whether that error is harmless beyond a reasonable doubt.