On Point: 25. Jury

State v. Aaron Schaffhausen, 2014AP2370-CR, District 3, 7/14/15 (not recommended for publication); case activity (including briefs)

It was error for the circuit court to tell jurors at the mental-responsibility phase of Schaffhausen’s NGI trial that they would decide whether a defense psychiatrist and psychologist were qualified as expert witnesses, but the error was harmless. In addition, the circuit court did not misuse its discretion in denying the jury’s request during deliberations to provide it with the expert witnesses’ reports.

State v. Maltese Lavele Williams, 2015 WI 75, 7/10/15; majority by Prosser: concurrence by Abrahamson; on certification from the court of appeals; case activity (including briefs)

All jury instruction errors are to be assessed for whether the error was harmless, the supreme court declares, including errors describing a theory of criminal culpability that was not presented to the jury or omitting a valid theory that was presented to the jury. The court therefore abrogates State v. Wulff, 207 Wis. 2d 143, 557 N.W.2d 813 (1997), which held that a jury instruction accurately setting out a legal basis for liability that does not fit evidence presented at trial should be assessed for whether the evidence was sufficient to support the basis for liability in the instruction.

Question presented:

Did the Georgia courts err in failing to recognize race discrimination under Batson v. Kentucky, 476 U.S. 79 (1986), in the extraordinary circumstances of this death penalty case?

State v. Clifton Robinson, 2014AP1575-CR, 3/31/15, District 1 (not recommended for publication); click here for briefs and docket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.

State v. Dawn M. Hackel, 2014AP1765-CR, District 4, 3/19/15 (one-judge decision; ineligible for publication); case activity (including briefs)

During voir dire at an OWI trial, a sheriff’s deputy/prospective juror said he had arrested drunk drivers, testified in drunk driving cases, and said that based on his professional training and occupation the State had sufficient evince to convict Hackel, and, therefore, she was guilty as charged. The court of appeals held this in no way tainted the jury panel heading into trial.

State v. Rory A. McKellips, 2015 WI App 31, petition for review granted 11/16/15, reversed, 2016 WI 51; case activity (including briefs)

McKellips is entitled to a new trial on charges he used a computer to facilitate a child sex crime because the jury was erroneously instructed to decide whether McKellips’s cell phone constituted a “computerized communication system,” when it should have been instructed to decide whether McKellips’s uses of the phone constituted communication via a “computerized communication system.”

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.

Dane County DHS v. Hershula B., 2014AP2076, 2/26/15, District 4  (one-judge opinion, ineligible for publication); click here for docket

Hershula appealed an order terminating her parental rights. She argued that the trial court erred in directing a verdict on the abandonment issue because she presented evidence that she had communicated indirectly with her child. The court of appeals held that the phrase “communicate with the child” requires that the child share in the action of communicating with the parent. Slip op. ¶22. Indirect communications don’t count.

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.

State . Michelle M., 2014ap1539, District 1; 1/27/15 (one-judge opinion; ineligible for publication); case activity

In this TPR case, a circuit court instructed a jury using the version of WIS JI-Children 346 that allows consideration of whether a mother has exposed her child to a hazardous living environment. The court should have given the prior version, which did not mention this consideration. According to the court of appeals, the jury could consider the point whether the instruction explicitly mentioned it or not.