On Point: B. Newly Discovered Evidence

State v. Landris T. Jines, 2014AP132, District 1, 9/30/14 (not recommended for publication); case activity

The recantations of Bartee, the victim, and Griffin, another state’s witness, don’t satisfy the newly-discovered evidence test because they are not sufficiently corroborated. Nor is there a reasonable probability a different result would be reached in a new trial with the recantation evidence.

State v. Adrian A. Starks, 2013AP93, District 4, 9/25/14 (not recommended for publication); case activity

New information that one of the officers who testified at Starks’s trial violated department policy on dozens of occasions (three of which occurred in Starks’s case) and ultimately resigned after an internal investigation didn’t entitle Starks to a new trial because there isn’t a reasonable probability that a jury considering the new evidence together with the old evidence would reach a different verdict.

State v. Robert Kentrell Gant, 2013AP1842-CR, District 1, 8/26/14 (not recommended for publication); case activity

Trial counsel’s failure to ask a witness at Gant’s second trial about her inconsistent testimony from Gant’s first trial wasn’t ineffective because the omission didn’t prejudice Gant. Further, the witness’s recantation of the testimony she gave at the second trial doesn’t satisfy the newly-discovered evidence test.

State v. Andrew M. Obriecht, 2014AP445-CR, District 4, 8/14/14 (1-judge; ineligible for publication); case activity

Obriecht didn’t show the victim’s mental health records might contain relevant information necessary to his defense, so the circuit court properly denied his motion to conduct an in camera review of the records.

State v. Bryanntton A. Brown, 2013AP1332-CR, District 1, 6/24/14 (not recommended for publication); case activity

Trial counsel was not ineffective for failing to present certain evidence that the complainant in Brown’s child sexual assault prosecution may have obtained her sexual knowledge from watching TV and movies and talking to her older sister. Nor was trial counsel ineffective for not taking steps to mitigate the impact of a letter Brown purportedly wrote to Carson, a fellow jail inmate, in which Brown admitted the charges. Finally, the circuit court didn’t erroneously exercise its sentencing discretion.

State v. Jesse J. Franklin, Jr., 2013AP1447, District 1, 6/17/14 (unpublished); case activity

Milwaukee Police Officers Paul Lough and James Campbell testified against Franklin at his trial for possession of marijuana and cocaine with intent to deliver and possession of a firearm by a felon.  Franklin was convicted and lost his appeal.  A few years later he filed a § 974.06 motion arguing that he should be granted a new trial based on newly-discovered evidence–namely evidence that Officers Campbell and Lough had beaten, planted evidence on, and falsely arrested 6 individuals during the same period in which they arrested Franklin.  Franklin argued that this evidence supported his defense that someone else had placed in his van the drugs and guns that the police found there.

State v. Joseph Jordan, 2011AP1249, District 1, 6/25/13; case activity; (not recommended for publication).

What a challenging case.  A jury convicted Jordan of first-degree reckless homicide and other crimes.  He lost his direct appeal and then filed a pro se §974.06 motion requesting various forms of relief, including a new trial based on: (a) newly-discovered evidence, and (b) ineffective assistance of counsel. He also filed several requests for counsel,

State v. Michael T. O’Haver, 2011Ap2930-CR, District 2/4, 6/20/13; court of appeals decision (not recommended for publication); case activity

Change of venue

The circuit court did not erroneously exercise its discretion in denying O’Haver’s motion to change venue, applying State v. Albrecht, 184 Wis. 2d 287, 306, 516 N.W.2d 776 (Ct. App. 1994). There were a limited number of potentially objectionable pretrial media reports describing the homicide and distress of the victim’s family.

State v. Alvernest Floyd Kennedy, 2012AP523-CR, District 1, 4/9/13, court of appeals decision (not recommended for publication), petition for review granted 2/19/14, affirmed, 2014 WI 132; case activity

Terry stop — reasonableness of length of detention; arrest –probable cause

Kennedy was the driver of a car that struck a pedestrian. (¶¶3-5). After about 30 minutes on the scene investigating the incident,

State v. Brian Avery, 2013 WI 13 (Wis. S. Ct. 1/30/13), reversing 2011 WI App 148; case activity

The supreme court affirms the trial court’s denial of Brian Avery’s Wis. Stat. § 974.06 motion for a new trial based on newly discovered evidence, concluding there isn’t a reasonable probability a jury would have a reasonable doubt about Avery’s guilt. The court also holds Avery was not entitled to a new trial in the interest of justice.