On Point blog, page 8 of 17
Newly Discovered Evidence – Recantation
State v. Reynold C. Moore, 2010AP377, District 3/4, 1/26/12
court of appeals decision (not recommended for publication); for Moore: Byron C. Lichstein; case activity; prior history: 1997AP1193-CR, habeas relief denied, Moore v. Casperson, 345 F.3d 474 (7th Cir. 2003)
Moore seeks relief on the basis of newly discovered evidence in the form of a purported recantation of State witness James Gilliam’s trial testimony.
Statute of Limitations – Reopened OWI-1st; Excited Utterance
City of Waukesha v. James F. Murphy, 2010AP2499, District 1/2, 11/29/11
court of appeals decision (1-judge, not for publication); for Murphy: Leonard G. Adent; case activity
The City obtained dismissal of a then-pending OWI-1st, after discovering that Murphy had an OWI-related conviction. (Per Walworth Cnty. v. Rohner, 108 Wis. 2d 713, 722, 324 N.W.2d 682 (1982), the State has exclusive authority over second and subsequent drunk driving offenses.) However,
TPR – Constitutionality of § 48.415(6); Interest of Justice Review – Jury Instructions, Failure to Assume Parental Responsibility
Langlade County Dept. of Social Services v. Rebecca D., 2010AP2497, District 3, 11/15/11
court of appeals decision (1-judge, not for publication); for Rebecca D.: William E. Schmaal, SPD, Madison Appellate; case activity
¶19 On the facts adduced at trial, Rebecca clearly failed to assume parental responsibility for Anthony, pursuant to the standards set forth in Wis. Stat. § 48.415(6). Anthony was nearly five months old when he was removed from Rebecca’s home.
TPR – Interests of Justice Review; IAC; Dispositional Hearing – GAL
Kathleen N. v. Brenda L. C., 2010AP2737, District 4, 10/27/11
court of appeals decision (1-judge, not for publication); for Brenda l.C.: Eileen A. Hirsch, SPD, Madison Appellate; case activity
Brenda isn’t entitled to a new TPR trial in the interests of justice, notwithstanding a line of inquiry that went to the respective financial capabilities of Brenda and her sister’s family (which sought the termination). “The evidence established that Brenda had last seen Samantha approximately six months prior to the hearing at a family gathering and had only spoken to Samantha at that event for a few minutes,
State v. Abraham C. Negrete, 2010AP1702, rev. granted 10/25/11
on review of summary order (District 2); for Negrete: Jeffrey W. Jensen; case activity
Plea Withdrawal – Collateral Attack – Deportation Consequences
Issues (Composed by On Point):
1. Whether the laches doctrine bars Negrete’s motion to withdraw his guilty plea, 18 years after he entered it.
2. Whether Negrete’s assertion that he didn’t know his plea exposed him to deportation entitles him to a hearing on his motion.
Interest-of-Justice Review: Post-Trial Revelations Undermining State’s Witnesses
State v. Kenneth M. Davis, 2011 WI App 147 (recommended for publication); for Davis: Robert R. Henak; case activity; reissuance after prior decision withdrawn
Several items of testimony, coming to light after trial, directly contradict the trial testimony of the main State’s witnesses, leading the court to conclude that the real issue in controversy – Davis’s alleged involvement in a drug-house robbery and murder of an occupant –
Newly Discovered Evidence: New Forensic Method, Photogrammetric Analysis; Interest-of-Justice Review
State v. Brian K. Avery, 2011 WI App 148 (recommended for publication), supreme court review granted, 2/23/12; for Avery: Keith A. Findley; case activity; prior 974.06 appeal: 2008AP500-CR; direct appeal: 1997AP317
Newly Discovered Evidence – New Forensic Method – Photogrammetric Analysis
Expert photogrammetric opinion, derived from video enhancement technology (“VISAR”) not commercially available until after Avery’s trial,
SVP Jury Instructions: “Mental Disorder” – Interest of Justice Review
State v. Paschall Lee Sanders, 2011 WI App 125 (recommended for publication); for Sanders: Ellen Henak, SPD, Milwaukee Appellate; case activity
The definitions of “mental disorder” in since-amended pattern instruction Wis JI—Criminal 2502 (2009), though concededly contradictory, didn’t prevent from being tried the issue of whether Sanders qualified for commitment as a sexually violent person:
¶14 As we have seen, two sentences in what the circuit court told the jury are contradictory:
(1) “Mental disorder means a condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence and causes serious difficulty in controlling behavior.” (Emphasis added.)
(2) “Not all persons with a mental disorder are predisposed to commit sexually violent offenses or have serious difficulty in controlling behavior.”
As noted earlier,
TPR – Removal of Element from Jury – Closing Argument, Misstatement, Interest of Justice
Florence County Department of Human Services v. Jennifer B., 2011AP88, District 3, 8/19/11
court of appeals decision (1-judge, not for publication); for Jennifer B.: Martha K. Askins, Shelley Fite, SPD, Madison Appellate; case activity
Removal from jury consideration of a ground for termination (CHIPS orders) without prior discussion between court and parties was error:
¶10 While we agree that a directed verdict is available in the grounds phase of a TPR proceeding,
Ineffective Assistance of Counsel; Multiplicity; Postconviction Discovery; Trial Judge Adopting State’s Brief in Toto
State v. Kelvin L. Crenshaw, 2010AP1960-CR, District 1, 8/2/11
court of appeals decision (not recommended for publication); for Crenshaw: Joseph E. Redding; case activity
Counsel wasn’t ineffective with respect to: failure to argue a theory of defense unsupported by the evidence; failure to introduce medical records asserted to show police bias in conducting the investigation; failure to object to the concededly erroneous inclusion of “party to a crime”