On Point blog, page 3 of 15

“True threat” instruction wasn’t needed at disorderly conduct trial

State v. Kaprisha E. Greer, 2019AP806-CR, District 1, 1/22/20 (one-judge decision; ineligible for publication); case activity (including briefs)

Greer seeks a new trial in the interest of justice on the ground that the jury at her disorderly conduct trial should have been instructed about the meaning of “true threat” because the state elicited evidence about a threat during its case-in-chief. The court of appeals rejects her claim.

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Standard OWI jury instruction sufficiently conveyed meaning of “impaired”

State v. Kari E. Mravik, 2018AP2300-CR, District 4, 8/29/19 (one-judge decision; ineligible for publication); case activity (including briefs)

At her OWI 2d trial, Mravik asked the judge to modify Wis. J.I.—Criminal 2663’s definition of “under the influence of an intoxicant.” The trial judge declined. The court of appeals finds no error because the instruction as a whole conveys the correct meaning of the phrase.

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SCOW rejects challenges to JI-140

State v. Emmanuel Earl Trammell, 2019 WI 59, May 31, 2019, affirming an unpublished court of appeals decision; case activity (including briefs)

Trammell challenged Wis. JI—Criminal 140, Wisconsin’s standard instruction on the burden of proof in a criminal case, arguing it dilutes the state’s burden of proving guilt beyond a reasonable doubt. His primary challenge was to the directives that “[w]hile it is your duty to give the defendant the benefit of every reasonable doubt, you are not to search for doubt. You are to search for truth.” The court rejects Trammell’s arguments, though two concurring justices ask the Criminal Jury Instruction Committee to consider whether the instruction should be modified because it lacks an explanation of the quantum of proof required.

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Admission of other acts evidence and sufficiency of evidence for homicide conviction affirmed

State v. Alberto E. Rivera, 2018AP952-CR, 4/30, District 1 (not recommended for publication); case activity (including briefs).

The State charged Rivera with a homicide and an attempted homicide that occurred in 2015. Before trial, it moved to introduce “other acts” evidence–a homicide that Rivera committed in 1997. The trial court tentatively denied the motion. But then Rivera’s counsel made a “strategic” decision to offer the evidence as part of his defense.  So, as you might guess, the appellate challenge regarding the admission of this evidence failed.

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Ineffective assistance, multiplicity claims rejected

State v. Martez C. Fennell, 2017AP2480-CR, District 1, 3/26/19 (not recommended for publication); case activity (including briefs)

Fennell unsuccessfully challenges his convictions for armed robbery and operating a vehicle without the owner’s consent, arguing that the charges are multiplicitous and that trial counsel should have subpoenaed a witness who would have impeached the victim’s identification of him.

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SCOW to decide whether jurors should search for the truth or reasonable doubt

State v. Emmanuel Earl Trammell, 2017AP1202-CR, petition for review of per curiam opinion granted 11/13/18; case activity (including briefs)

Issues (from the petition for review):

1.   Is this Court’s holding in Avila–that it is “not reasonably likely” that the standard JI-140 reduces the State’s burden of proof–good law; or should it be overruled by the Court on the grounds that it is rebutted by empirical evidence?

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Counsel not ineffective in handling of lesser-includeds, theory of defense in homicide trial

State v. Keith J. Brooks, 2017AP1723-CR, 9/25/18, District 1 (not recommended for publication); case activity (including briefs)

Brooks was tried for first-degree intentional homicide. The jury acquitted him of that but convicted of the lesser-included first-degree reckless. He argues his trial lawyers were ineffective because they pursued a strategy that would have let the jury find him guilty of that count even if (as the defense contended) the victim had committed suicide.

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Should courts instruct jurors to search for truth or reasonable doubt?

Looking for a creative objection? Consider this excerpt from the abstract on Michael Cicchini’s new article,  Spin Doctors: Prosecutor Sophistry and the Burden of Proof, forthcoming in the University of Cincinnati Law Review.

In two recently published studies, mock jurors who received truth-based instructions convicted at significantly higher rates than those who were simply instructed on reasonable doubt. Jurors who received the truth-based instructions were also far more likely to mistakenly believe it was proper to convict even if they had a reasonable doubt about guilt.

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SCOW finds no problem with problematic jury instructions on self-defense, accident

State v. Joseph T. Langlois, 2018 WI 73, 6/20/18, affirming a published court of appeals decision, 2017 WI App 44; case activity (including briefs)

A majority of the supreme court concludes that the jury instructions given in this case, when viewed in their entirety, accurately stated the law the jury needed to decide the case. Two dissenting justices disagree, concluding that when considered in their entirety, the instructions could have led the jury astray.

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Imperfect self-defense mitigates a charge of 1st-degree intentional homicide, not a charge of 1st degree-reckless homicide

State v. Devin T. White, 2016AP119-CR, 4/10/18, District 1, (not recommended for publication); case activity (including briefs)

White was convicted of 1st-degree reckless homicide. He argued that the trial court misapplied the law governing self-defense and improperly instructed the jury. The court of appeals repeatedly struggled to determine the thrust of his argument, but it appeared to be this:

¶15 Under White’s interpretation of the law, the State must prove beyond a reasonable doubt that he did not have these actual beliefs; therefore, the trial court erred in failing to instruct the jury of the State’s burden and that White could not be found guilty if the State did not prove he did not have these actual beliefs. Under White’s interpretation of the law, his actual belief controls, not whether his belief was reasonable.

The court of appeals also admonished White’s appellate counsel.

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