On Point blog, page 11 of 81
April 2022 publication order
On April 28, 2022, the court of appeals ordered publication of the following criminal law related decisions:
SCOW makes it tougher to attack prior OWIs
State v. Teresa L. Clark, 2022 WI 21, 4/20/22, reversing the circuit court on bypass, case activity (including briefs)
A defendant may collaterally attack a prior OWI conviction if she was not represented by counsel and did not knowingly, intelligently, and voluntarily waive the right to counsel during that proceeding. Once she points to evidence of this claim, the burden shifts to State to prove a valid waiver. In a split opinion, SCOW now holds that if the transcript of the prior OWI hearing is unavailable, the burden doesn’t shift. The defendant must prove that her right to counsel was in fact violated–which is virtually impossible.
COA asks SCOW to decide when defendant’s right to counsel attaches
State v. Percy Antione Robinson, 2020AP1728-Cr, certification filed 4/19/22, District 1; case activity (including briefs)
Whether Milwaukee County’s CR-215 procedure for determining probable cause triggers an accused’s 6th Amendment right to counsel for any subsequent “critical stage” of the legal proceeding?
SCOW will take up hearsay rules; “opening the door” to confrontation violations
State v. Garland Dean Barnes, 202AP226-CR, petition for review of a per curiam opinion granted 4/15/22; affirmed 6/6/23; case activity (including briefs)
Questions Presented:
Can a defendant open the door to testimonial hearsay violating his confrontation rights, and which was excluded based on an egregious discovery violation, by challenging the quality of the police investigation?
Can the claim that a non-testifying officer witnessed the defendant commit the crime be admitted over hearsay objections under the theory that it is admissible to show the course of investigation, not for the truth of the matter asserted?
SCOW will address standard of review for reasonable suspicion traffic stops
State v. Charles W. Richey, petition to review a per curiam opinion granted 4/13/22; case activity (including briefs)
Question presented:
Whether, at the time of the stop, Officer Meier only had a generalized hunch that Richey’s motorcycle may have been the one that committed a traffic violation.
Court of Appeals addresses successive postconviction motion, judge’s use of written rather than oral sentencing rationale
State v. Hajji Y. McReynolds, 2022 WI App 25; case activity (including briefs)
This decision addresses: 1) the propriety of successive postconviction motions; 2) a claim that trial counsel was ineffective for failing to object to testimony vouching for the credibility of another witness and to improper character evidence; and 3) the novel issue of the sentencing judge’s use of a written rather than oral explanation of its sentencing rationale under § 973.017(10m)(b).
SCOW will address whether prosecutor cured plea agreement breach by restating correct sentencing recommendation
State v. Robert K. Nietzold, Sr., 2021AP21-CR, petition for review of an unpublished court of appeals decision granted 4/13/22; case activity (including briefs and PFR)
Issue presented (composed by On Point based on the state’s PFR)
Was the state’s breach of its plea agreement with Nietzold remedied by the prosecutor’s withdrawal of the erroneous recommendation and restatement of the correct recommendation?
SCOW will review Brady’s “material evidence” requirement
State v. Jeffrey L. Hineman, 2020AP226-CR, petition for review of a per curiam opinion granted 4/13/22; reversed 1/10/23; case activity (including briefs)
Issues (from the State’s petition for review)
1. In cases involving credibility contests between a complaining witness (here, S.S.) and the defendant (Hineman), to what extent can a reviewing court reweigh the witnesses’ credibility in assessing whether, based on omitted evidence, there was a reasonable likelihood of a different result under the Brady materiality or Strickland prejudice standards?
2. The court of appeals also reached an abandoned Shiffra/Green issue and ordered in camera review of S.S.’s therapy files from his private therapist because the therapist acted as a mandatory reporter.
SCOW: Subpoena for hospital records of defendant’s blood tests wasn’t tainted by prior unlawful warrantless blood draw
State v. Daniel J. Van Linn, 2022 WI 16, 3/24/22, affirming an unpublished court of appeals decision; case activity (including briefs)
After Van Linn refused to consent to a blood draw, police ordered one to be taken even though they didn’t have a warrant or exigent circumstances. After the circuit court suppressed the results of the test of this illegal blood draw, the state obtained the same evidence using a subpoena for Van Linn’s medical records. The supreme court holds that, under the “indepedent source” doctrine, the evidence obtained with the subpoena should not be suppressed even though the state sought the subpoena after the suppression of the same evidence obtained with the illegal blood draw.
SCOTUS clarifies law governing §1983 claims arising from criminal cases
Under 42 U.S.C. §1983, our clients may file a claim for damages arising from a violation of their constitutional rights during the criminal justice process. For example, maybe the State violated their 4th Amendment rights or engaged in malicious prosecution. This week, SCOTUS issued a decision clarifying that in order to bring such a claim the client would not have to show “some affirmative indication of innocence.” Rather, client only has to show that their prosecution ended without a conviction.