On Point: 25. Jury

State v. Tomas Jaymitchell Hoyle, 2020AP1876-CR, 4/26/22, District 3 (not recommended for publication); case activity (including briefs)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. Antonio Darnell Mays, 2022 WI App 24; case activity (including briefs)

Mays was accused of forcing his way into an apartment with and firing a gun at at least one of its occupants. One occupant fired back; in the end, two people were dead. The state initially charged Mays with, among other things, a reckless homicide for each of the deaths. But when, at trial, the evidence suggested that one of the decedents had been shot not by Mays, but by the occupant returning fire at Mays, the state moved to amend the information as to that death to charge felony murder instead. Mays opposed the amendment, and ultimately the state instead convinced the court to instruct the jury on felony murder as a lesser-included offense of reckless homicide. The jury convicted Mays of this lesser-included (and other counts).

State v. Michael T. Dewey, 2021AP174-CR, District 4, 4/14/22 (not recommended for publication); case activity (including briefs)

Dewey was charged with three dozen counts of child sexual assault related crimes alleged to have occurred during various times between 2005 and 2013. He argues the charging periods for most of the counts were “too long and disjointed” to allow him to prepare an adequate defense and that his trial lawyer was ineffective for not objecting to jury instructions for five of the counts on the ground that the three non-continuous time periods charged for those counts failed to protect his right to a unanimous verdict. The court of appeals rejects his arguments.

State v. Carl Lee McAdory, 2021 WI App 89; case activity (including briefs)

McAdory was charged with driving with a detectable amount of restricted controlled substances—cocaine and THC—and driving under the influence of those substances. At trial, the state convinced the trial judge to modify the standard jury instruction for the latter charge, Wis. J.I.—Criminal 2664, by deleting the statement that not every person who has consumed controlled substances is “under the influence.” This modification, coupled with the prosecutor’s closing argument that it had proven its case by proving McAdory had a detectable amount of the substances, effectively relieved the state of its burden to prove that McAdory was “under the influence.”

State v. Donald P. Coughlin, 2019AP1876-CR, petition for review of an unpublished court of appeals decision granted 9/14/21; case activity (including briefs)

Issues presented (from State’s petition for review)

1. How does a court consider the theory of guilt in an evidence sufficiency claim when an inconsistency exists between a jury instruction and verdict?

2. Must a court accept a jury’s resolution of any vagueness in testimony as jury credibility and weight determinations and must a court then adopt the reasonable inferences that a jury may have drawn from the evidence?

3. Has Coughlin, as the defendant challenging the sufficiency of the evidence, met his heavy burden to overcome the great deference this Court gives to the jury and its verdict to satisfy that the evidence, viewed most favorably to the State and the convictions, was insufficient to sustain the 15 guilty verdicts relating to his sexual assaults of John Doe 2 and John Doe 3?

State v. Robert Daris Spencer, 2018AP942-CR, petition for review, and petition for cross review, of an unpublished court of appeals decision, both granted 8/13/21; case activity (including briefs)

Issues presented (composed by On Point from the PFR and cross PFR)

1.  Was the circuit court’s ex parte voir dire and removal of a juror during trial a structural error requiring automatic reversal, or is it subject to harmless error analysis?
2. Did the circuit court improperly consider the race of the defendant and the witnesses in deciding to dismiss juror?
3. Is a defendant entitled to a postconviction hearing on an ineffective assistance of counsel claim when the record conclusively shows the claim should be denied?

State v. Jacky Lee, 2020AP1633, 7/27/21, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

The state arrested Lee for second-offense OWI and PAC violations. The intoximeter breath test he took at the police department was video-recorded. However, due to the state’s delay in charging Lee, he did not request the video until it had already been recorded over, consistent with the department’s practice of keeping such videos for 3-6 months unless there’s been a request to preserve them.

State v. Oscar C. Thomas, 2021 WI App 55; Review granted 1/11/22; affirmed 2/21/23; case activity (including briefs)

This is the appeal from Thomas’s second conviction at trial for the false imprisonment, sexual assault and murder of his wife. (The first conviction was ultimately undone by the Seventh Circuit, which held that his counsel had been ineffective for failing to seek out certain expert testimony.) Thomas raises three issues. He claims he was convicted of the sexual assault count in violation of the corroboration rule, because the only evidence it occurred was his own confession. He also says all three convictions were obtained in violation of his right to confrontation, as the state introduced a hearsay lab report concerning DNA evidence during cross-examination of his expert. And he argues one of the jurors was objectively biased because she at least believed she was a cousin of one state’s witness. The court rejects all three claims.

State v. Michael J. Foster, 2020AP2149-CR, District 4, 7/29/21 (not recommended for publication); case activity (including briefs)

A defendant claiming that trial counsel was ineffective for failing to ask for a theory of defense jury instruction must propose the language the instruction should have included and establish it is a correct statement of the law. Absent such a proposed instruction, the ineffective claim will fail.

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.