On Point: 25. Jury

Lopez v. Smith, USSC No. 13-946, 10/6/14 (per curiam), reversing Smith v. Lopez, 731 F.3d 859 (9th Cir. 2013); docket

When a state prisoner seeks federal habeas relief on the ground that a state court, in adjudicating a claim on the merits, misapplied federal law, a federal court may grant relief only if the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). We have emphasized, time and again, that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), … prohibits the federal courts of appeals from relying on their own precedent to conclude that a particular constitutional principle is “clearly established.” …. Because the Ninth Circuit failed to comply with this rule, we reverse its decision granting habeas relief to respondent Marvin Smith. (Slip op. at 1).

State v. Charles L. Chew, 2014 WI App 116; case activity

In its first decision addressing Wisconsin’s recently adopted “castle doctrine,” § 939.48(1m), the court of appeals holds Chew wasn’t entitled to a self-defense jury instruction under the statute because the men Chew shot at were not “in” his “dwelling.”

State v. Jacob G. Mayer, 2013AP2758-CR, District 2, 9/24/14 (not recommended for publication); case activity

The trial court’s refusal to instruct the jury on the defense of voluntary intoxication and the prosecutor’s improper closing argument were harmless, but the latter is egregious enough to cause the court of appeals to refer the prosecutor to OLR.

State v. Tammy S. Cole, 2013AP947-CR, District 4, 2/27/14; court of appeals decision (not recommended for publication); case activity

The trial court did not err in declining to instruct on second-degree reckless homicide or homicide by negligent handling of a dangerous weapon, as Cole requested at her trial on one count of first degree intentional homicide for shooting Evans, her boyfriend:

¶14      The evidence viewed in the light most favorable to Cole does not support submission of these lesser-included offenses.

Washington County v. Joseph Harvey Bingen, 2013AP1171, District 2, 2/5/14; court of appeals decision (1-judge; ineligible for publication); case activity

The trial court didn’t erroneously exercise its discretion by denying Bingen’s request for additional voir dire of prospective jurors for his first-offense OWI trial. In particular, Bingen was not able to ask if any jurors had been the victims of or convicted of drunk driving.

State v. Darryl J. Badzinski, 2014 WI 6, reversing unpublished court of appeals decision; case activity

Badzinski was charged with sexually assaulting his niece, A.R.B., during a family gathering at the home of his parents. (¶¶8-9). A.R.B. testified the assault occurred in a specific room–the basement laundry room. (¶11). But there was also testimony from multiple defense witnesses that it was not possible for the assault to have happened in the laundry room.

State v. Chase M.A. Boruch, 2013AP925-CR, District 3, 1/22/14; court of appeals decision (not recommended for publication); case activity

While deliberating on the charge that Boruch killed his mother, the jury asked the judge for the “autopsy report.” (¶¶4, 8). The parties agreed to send back the preliminary and final reports done by Corliss, the state’s pathologist, along with a toxicology report; however, the judge refused Borcuch’s request to send the jury the report of Randall,

State v. Michael T. Grant, 2013AP515-CR, District 2, 1/15/14; court of appeals decision (not recommended for publication); case activity

Grant was on trial for two counts of sexual assault involving two different victims. (¶¶1, 4-6). During deliberations the jury advised the court it had reached a verdict on one count but could not agree on the other. (¶8). In response the judge suggested taking the verdict the jury reached on the one count,

State v. Eddie Lee Anthony, 2013AP467-CR, District 1, 1/14/14; court of appeals decision (not recommended for publication), petition for review granted 8/5/14, affirmed, 2015 WI 20; case activity

Right to Testify

The trial court held that Anthony, charged with first degree intentional homicide, forfeited his right to testify based on Anthony’s “incessant” refusal to accept the trial court’s ruling that he was to answer “two” if asked about the number of his prior convictions and Anthony’s physical agitation and irrelevant rants.

Review of unpublished court of appeals decision; case activity

Issues (composed by On Point)

Did the trial court err in instructing the jury that voluntary consumption of any drug precludes a finding of “mental defect” under § 971.15, where the defendant claimed he suffered from a temporary mental defect based in part on his use of a prescription drug as directed by a doctor?

Did the court of appeals erroneously exercise its discretion in granting a new trial in the interest of justice?