On Point: 30. Pretrial proceedings

State v. Gary Lee Wayerski, 2019 WI 11, affirming and modifying an unpublished court of appeals decision; case activity (including briefs)

The supreme court overrules Wisconsin’s longstanding test for deciding whether the state has “suppressed” favorable evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), saying the test is unsupported by and contrary to Brady and the U.S. Supreme Court’s decisions applying Brady.

State v. Autumn Marie Love Lopez & Amy J. Rodriguez, 2019 WI App 2, petition for review granted 4/9/19, affirmed by a divided court, 2019 WI 101; Lopez case activity; Rodriquez case activity).

Lopez and Rodriguez were each charged with a single count being party to the crime of felony retail theft of more than $500 but less than $5,000 based on seven separate incidents occurring over two weeks at the same store. Each separate incident involved the theft of less than $500. (¶2). Can the state aggregate the incidents into a single felony count under § 971.36, or does that create a duplicity problem (charging two or more offenses in a single count) that must be avoided by charging seven separate misdemeanors? Aggregate away! sayeth the court of appeals.

State v. Brian A. Barwick, 2017AP958-CR through 2017AP961-CR, District 1, 9/5/18 (not recommended for publication); case activity (including briefs)

Barwick was charged with eleven counts of various crimes in four separate cases that were consolidated for trial. He makes various unsuccessful challenges to his convictions.

County of Milwaukee v. Ross J. Romenesko, 2017AP1042-1044, 6/19/18, District 1, (1-judge appeal, ineligible for publication); case activity (including briefs)

Romenesko prevailed below–the circuit court (1) suppressed a revised report relating to his blood sample, (2)  precluded but one of its experts from testifying, and eventually (3) dismissed the the OWI 1st offense and operating with a PAC 1st offense charges against him as a sanction against the County. The court of appeals affirmed the suppression decision but reversed the other 2 decisions.

State v. Dylan D. Radder, 2018 WI App 36; case activity (including briefs)

In a decision every trial-level criminal defense lawyer must read, the court of appeals affirms the denial of a motion to suppress without an evidentiary hearing because the motion failed to allege sufficient facts to raise a question of disputed fact that must be resolved at a hearing. Understand the standards set out in this decision, make sure your motions attempt to adhere to them, and be prepared to argue your suppression motions satisfy them, as every prosecutor and trial judge will be eager to invoke this decision to deny your motions without a hearing.

State v. Anthony H. Garbacz, Jr., 2017AP1419, 5/3/18, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

A Prairie du Chien police officer saw Garbacz driving erratically and tried to stop him. Garbacz didn’t stop, instead heading over the bridge to Iowa with the officer in pursuit. Some Iowa squads joined the chase and eventually Garbacz was arrested. He was not, however, taken before a judge in Iowa to determine the legality of the arrest–he was taken back to Wisconsin and charged with OWI. That’s a violation of Iowa’s Uniform Law on Close Pursuit, and Garbacz argues evidence derived from his arrest must thus be suppressed.

State v. Wayne A. Johnson, 2017AP729-CR, District 3, 4/25/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Johnson failed to satisfy his burden for getting an in camera review of counseling records under 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, because he didn’t prove the records were likely to provide information over and above information that was available to him from another source—Johnson’s girlfriend, who was the complaining witness’s mother.

State v. Larry L. Garner, 2016AP2201-CR, 4/17/18, District 1 (not recommended for publication); case activity (including briefs)

The State charged Garner and 3 other co-defendants with 2 counts of armed robbery use of force, PTAC, and felony murder, PTAC. The trial court ordered separate trials. A mistrial occurred due to juror misconduct, so the court held a second trial where the jury found Garner guilty on all 3 counts. On appeal the lead issue was whether the circuit court violated Garner’s confrontation rights by allowing the State to present his co-defendant’s testimony from the 1st trial at his 2nd trial. The answer, according to the court of appeals, is “no.” Garner’s challenges to the State’s amended information and to his sentence also failed.

State v. William H. Craig, 2017AP651-CR, 4/17/18, District 3 (not recommended for publication); case activity (including briefs)

Criminal defendants have a broad right to pretrial discovery under §971.23(1), but that right is tempered by  §971.23(6), which authorizes the circuit court to enter protective orders for good cause. The court is not required to hold an evidentiary hearing before granting a motion for protective order. But if it denies a hearing, it must explain its rationale. The circuit court did not do that here, so the court of appeals reversed and remanded this case for further proceedings.

State v. Gary Lee Wayerski, 2015AP1083-CR, petition for review of unpublished court of appeals opinion granted 3/13/18; case activity (including briefs)

Issues (composed by On Point):

Whether trial counsel was ineffective where he did not ask the testifying defendant about the purported confession he gave to a jailhouse snitch, and defendant would have denied the conversation occurred.

Whether the state violated Brady when it did not inform defense that the snitch had pending child-sex charges during the trial.