On Point blog, page 8 of 16
State barred from amending OWI charge from felony to misdemeanor
State v. Brian R. Corvino, 2016 WI App 52; case activity (including briefs)
This decision examines § 967.055(2)(a), which requires the State to apply to the circuit court before amending an OWI charge. The court of appeals found that amending the charge here would be inconsistent with the public policy of deterring drunk-driving and held that the circuit court had the inherent authority to order the State to file an Information charging Corvino’s 4th OWI as a felony.
SCOW: Joinder of charges okay. Oh, and “or” can also mean “by”.
State v. Salinas, 2016 WI 44, 5/26/2016, reversing an unpublished per curiam court of appeals decision; case activity (including briefs)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.
Spare the rod, spoil the State
State v. L.C., 2016AP81, 5/25/16, District 2 (1-judge opinion; ineligible for publication; case activity
That sums up the court of appeals’ decision in this juvenile delinquency case. The State failed to timely provide the defense with a copy of L.C.’s recorded confession and a witness list before trial. The circuit court and court of appeals shrugged off these discovery violations.
Counsel wasn’t ineffective for failing to file Shiffra motion
State v. Tony Phillip Rogers, 2015AP921-CR, 4/12/16, District 1 (not recommended for publication); case activity (including briefs)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.
Defense wins new trial due to trial court’s failure to sever codefendants
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.
Delinquency petition stated probable cause
State v. A.C., 2015AP1604, 1/20/16, District 1 (one-judge decision; ineligible for publication); case activity
A petition alleging A.C. was delinquent contained sufficient facts to establish probable cause that A.C. acted as a party to the crime of operating a motor vehicle without the owner’s consent.
No severance, no ineffective assistance, no suppression, no in camera review of mental health records
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.
Yearlong failure to disclose witnesses merits exclusion
State v. Caroline D. Prieto, 2016 WI App 15; case activity (including briefs)
Nearly three years after the defense demand, and a year after the first (of two) court orders to produce a witness list, the state still hadn’t done so. The circuit court’s response? No list, no witnesses. The state appeals and…
Court okays joinder of sex crimes involving five victims
State v. Eric Christopher Bell, 2014AP2899-CR and 2014AP2900-CR, District 1, 11/24/2015 (not recommended for publication); case activity (including briefs)
Bell raises two challenges to the joinder of ten counts involving five victims; the court rejects both.
E pluribus unum: Court of Appeals addresses notice, unanimity, venue and statute of limitations issues arising from charging multiple thefts in a single count
State v. Jeffrey L. Elverman, 2015 WI App 91; case activity (including state’s brief)
The court rejects all challenges to a conviction of theft of more than $10,000. The issues mostly spring from the state’s use of Wis. Stat. § 971.36(4), which permits, under certain circumstances, the aggregation of multiple thefts into a single count.