On Point: E. Specific motions/hearings

State v. A.S.W./State v. J.P.W., 2015AP2119 & 2015AP2120, District 2, 10/5/16 (one-judge decision; ineligible for publication); case activity

Douglas Yanko was convicted of sexually assaulting a child. Postconviction, he sought access to the juvenile court records of the child’s brothers, A.S.W. and J.P.W., who were also charged with sexually assaulting the child. Yanko asserts there may be exculpatory evidence in the records—in particular, evidence the child is untruthful or otherwise incredible—because the delinquency petitions were amended to charge misdemeanor battery and A.S.W. and J.P.W. were given in-home placement. (¶¶2-4). The court of appeals rejects all Yanko’s arguments for getting access to the records.

Review of an unpublished court of appeals opinion; case activity (including briefs)

Issues (composed by On Point)

Whether Nieves’s confrontation right was violated when the trial court permitted a witness to testify about a non-testifying co-defendant’s confession that, by implication, inculpated Nieves.

Whether a surviving victim’s testimony that someone had told him Nieves was planning to kill him was admissible to show how the victim “felt.”

Whether trial counsel was ineffective for failing to investigate an alibi evidence that could have placed Nieves in Illinois on the night of the shooting.

State v. Gary Abdullah Salaam, 2014AP2666-CR & 2667-CR, 9/13/2016, District 1 (Not recommended for publication); case activity (including briefs)

Salaam raises four claims challenging his convictions, at jury trial, of recklessly endangering safety, being a felon in possession of a firearm, and three counts of witness intimidation. The court affirms as to the first two counts but finds insufficient evidence as to the witness intimidation charges.

State v. Joe Bonds Turney, 2015AP1651-CR & 2015AP1652-CR, District 1, 8/30/16 (not recommended for publication); case activity (including briefs)

Turney claims the trial court erred in permitting joinder of two cases for trial and in denying his motion for substitution of judge following his arraignment. He also argues he is entitled to an evidentiary hearing on his ineffective assistance of counsel claim, which was based on trial counsel’s failure to object to a witness’s reference to his post-arrest silence. The court of appeals rejects his claims.

State v. Rodell Thompson, 2015AP1764-CR, District 4, 8/4/16 (not recommended for publication); case activity (including briefs)

The trial court didn’t erroneously exercise its discretion in deciding to admit other-acts evidence in Thompson’s trial for sexual assault, false imprisonment, and battery, and Thompson’s IAC claims fail for want of prejudice.

State v. Patrick J. Lynch, 2016 WI 66, 7/13/16, affirming (for all practical purposes) a published court of appeals decision, 2015 WI App 2, 359 Wis. 2d 482, 859 N.W.2d 125; case activity (including briefs)

A very divided supreme court once again declines to overrule State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), and State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, and leaves the current standard and remedy intact—or, as the mandate puts it, “the law remains as the court of appeals has articulated it.” But four separate writings totaling 135 pages make it clear Shiffra in its current form will certainly be subject to challenge again.

State v. Salinas, 2016 WI 44, 5/26/2016, reversing an unpublished per curiam court of appeals decision; case activity (including briefs)

In which our so-called law-developing court does not develop the law of joinder under § 971.12(1)—and even leaves it less clear than it used to be.

State v. Tony Phillip Rogers, 2015AP921-CR, 4/12/16, District 1 (not recommended for publication); case activity (including briefs)

Though the complainant in Rogers’s child sexual assault prosecution made statements to her mother about “hearing voices” and needing mental health assistance, trial counsel was not deficient for failing to move for an in camera review of her treatment records because he could not have made the materiality showing needed under State v. Shiffra, 175 Wis. 2d 600, 608-09, 499 N.W.2d 719 (Ct. App. 1993), and State v. Green, 2002 WI 68, ¶¶32-34, 253 Wis. 2d 356, 646 N.W.2d 298.

State v. Raymond L. Nieves, 2014AP1623-CR, 4/5/16, District 1 (recommended for publication, but not published); petition for review granted 9/13/16; case activity (including briefs).

This case explores the line between Bruton v. U.S., 391 U.S. 123 (1968)(which holds that at a joint trial the confession of one defendant is inadmissible against the co-defendant unless the confessing defendant testifies and is subject to cross examination) and Richardson v. Marsh, 481 U.S. 200 (1987)(which holds that a non-testifying defendant’s written confession can be admitted if it is redacted to eliminate all references to his co-defendant). Nieves and his codefendant, Maldonado, were accused of 1st degree intentional homicide. The trial court denied severance and allowed a witness testify about Maldonado’s confession while repeatedly use the term “they” (implicating Maldonado and Nieves). The court of appeals ordered a new trial because admission of the confession evidence violated the Confrontation Clause.

State v. Gregory Tyson Below, 2014AP2614-2616-CR, 1/12,16, District 1 (not recommended for publication); case activity, including briefs

This was a high profile case in Milwaukee. Below was convicted of 29 charges of kidnapping, strangulation and suffocation, sexual assault, battery, reckless injury and solicitation of prostitutes. He appealed and asserted 4 claims for a new trial. The court of appeals rejected all of them.