On Point: 30. Pretrial proceedings

State v. Jeffrey L. Hineman, 2023 WI 1, 1/10/23, reversing a per curiam court of appeals opinion, 2020AP226, case activity (including briefs)

At Hineman’s trial for sexual assault of a child, a police officer testified that she believed the child had accused Hineman of touching him several months before her investigation began, and several months before the child made similar statements in a forensic interview. This wasn’t true, and the officer’s police report contradicted her testimony on this point: it said a CPS report had noted no allegations of abuse. But when defense counsel attempted to impeach the officer with her own report, the officer testified that she “didn’t know if” she’d “documented” the alleged prior consistent accusation, and while she “would think [she] would have” written such information in the report, she “might not have.”  It would have been easy to prove conclusively that there was no such allegation: counsel just needed the CPS report. But she didn’t have it, because the state–in what it concedes was a violation of its Brady obligations–didn’t turn it over. SCOW now says “eh, who cares?” and reverses the court of appeals’ grant of a new trial.

State v. Steven W. Bowers, 2023 WI App 4; case activity (including briefs)

In this important decision addressing a novel Fourth Amendment issue, the court of appeals holds that Bowers had a reasonable expectation of privacy in the contents of his Dropbox account, despite the fact he (1) used his work email address to create the account and  (2) uploaded case files and shared them without permission. (Opinion, ¶43). The court further holds that although investigators had probable cause to search the account for evidence of Bowers’ alleged crime, no exigent circumstances justified the warrantless search. (¶3).

There’s an interesting petition for writ of certiorari on this issue pending in SCOTUS. As this post from the Confrontation Blog explains: “The question is whether, or in what circumstances, the testimony of a prosecution witness at a preliminary hearing may be used at trial if the witness is then unavailable.  This is an issue on which the Supreme Court has not given any guidance since Crawford, and the petition ably shows that the lower courts are in clear dispute.”

State v. Kevin Richard Raddemann, 2022AP668-CR, 12/21/22, District II (1-judge opinion, ineligible for publication); case activity (including briefs).

In this misdemeanor OWI case, Raddemann moved to suppress evidence obtained following a stop of his vehicle. After the suppression hearing, he moved for reconsideration, arguing that a City of Hartford cemetery ordinance, which was the basis for the stop, was unconstitutionally vague. The circuit court denied Raddemann’s motion to reconsider because it was untimely. ¶5.

State v. Etter L. Hughes, 2021AP1834-CR, District 1, 11/1/22 (not recommended for publication); case activity (including briefs)

The court of appeals rejects Hughes’s claim that she should be allowed to withdraw her pleas to four counts of child abuse on the grounds that the state improperly amended the information to add more charges against her because there was no independent factual basis for those charges and because two of the counts were multiplicitous under § 948.03(5)(c).

State v. Kevin Lee Wilke, 2020AP1068-CR, District 3, 8/2/22 (one-judge decision; ineligible for publication); case activity (including briefs)

The court of appeals rejects Wilke’s arguments for a new trial and his challenge to the sufficiency of the evidence.

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. Michael J. Leighton, 2021AP1949-cr, 3/30/22, District 2 (not recommended for publication; case activity (including briefs)

In 2018, the State charged Leighton with misdemeanor theft and fraudulent use of a credit card, both as repeaters.  In 2020, he asked the DA for “prompt disposition” of his case per §971.11. Receiving no response, he moved for dismissal, which the court granted without prejudice. On appeal, he says dismissal should have been with prejudice.  The court of appeals disagreed due to the victim’s rights.

State v. Alec D. Alford, 2020AP2072-CR, District 2, 3/23/22 (one-judge decision; ineligible for publication); case activity (including briefs)

Dismissal with prejudice for failing to comply with the time limit under the intrastate detainer statute isn’t an “acquittal on the merits” under § 939.71 and thus doesn’t bar filing new charges based on the same course of conduct.

State v. Kody R. Kohn, 2020AP2147-CR, District 2, 9/22/21 (one-judge decision; ineligible for publication); case activity (including briefs)

Kohn argues the circuit court erred in: 1) denying his motion to suppress evidence obtained from the blood drawn from him after his arrest; 2) excluding exhibits he wanted to use to cross examine the state’s blood analyst; and 3) rejecting his motion to dismiss a bail jumping charge. The court of appeals affirms all the circuit court’s decisions.