On Point: 30. Pretrial proceedings

State v. Peter J. Hanson, 2019 WI 63, 6/5/19, affirming an unpublished decision of the court of appeals; case activity (including briefs)

Hanson was called to testify at a John Doe proceeding looking into an unsolved homicide. He was eventually charged with the crime, and at his trial the jury heard  a portion of Hanson’s John Doe testimony. The supreme court held the admission of this evidence didn’t violate Hanson’s right to confrontation. The court also holds that Hanson’s John Doe testimony was admissible despite the lack of Miranda warnings because that warning isn’t required at a John Doe proceeding.

State v. Autumn Marie Love Lopez & Amy J. Rodriguez, 2017AP913-CR & 2017AP914-CR, petition for review granted 4/9/19; case activity (including briefs)

Issue:

Does either Wis. Stat. § 971.36 or inherent prosecutorial charging discretion allow a prosecutor to charge a single felony count of retail theft for multiple separate acts of theft, each involving less than $500 in merchandise, committed over a span of time?

State v. Jarmel Dontra Chisem, 2017AP1114-CR, 3/5/19, District 1 (not recommended for publication); case activity (including briefs)

Chisem, facing charges of first degree reckless homicide and first degree recklessly endangering safety, moved to sever his case from that of his co-defendant, Davis. The court of appeals holds trying the two together was fine.

State v. Esmeralda Rivera-Hernandez, 2018AP311-312-CR, 2/20/19, District 2 (1-judge opinion; ineligible for publication); case activity (including briefs)

DAs have almost limitless discretion in deciding whether to initiate a prosecution. But their discretion to terminate a prosecution is subject to independent review by the circuit court, which must consider the public’s interest in: (1) the proper enforcement of its laws, and (2) deferring to the prosecutor’s legitimate discretion.  See State v. Kenyon, 85 Wis. 2d 36, 45, 270 N.W.2d 170 (1978). In this case, the court of appeals holds the circuit court erroneously exercised its discretion when it considered (1) but not (2).

State v. Gary Lee Wayerski, 2019 WI 11, affirming and modifying an unpublished court of appeals decision; case activity (including briefs)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