On Point: Important Posts

The court of appeals has ordered publication of the following criminal law related decision:

State v. Nicholas Reed Adell, 2021 WI App 72 (circumstances justified extension of traffic stop to determine whether driver had prohibited alcohol content)

State v. X.S., 2021AP419, review of an unpublished court of appeals opinion, granted 10/18/21, case activity

Issues:

1. Whether the court of appeals erroneously exercised its discretion in denying “Xander’s” motion for reconsideration less than 24 hours after it was filed without any explanation?

2. Whether a juvenile who stipulates to the prosecutive merit of a delinquency petition is estopped from presenting any evidence to contradict factual averments in the petition even when those facts do not negate probable cause for the charged offense?

3. Whether the court of appeals erroneously applied the discretionary standard of review?

State v. William C. MacDonald, 2020AP605-CR, 10/14/21, District 4 (not recommended for publication); case activity (including briefs)

Section 973.042(2) mandates a $500 surcharge for each image “associated with the crime” of possession of child pornography. The State charged MacDonald with 10 counts of possessing child porn. He pled “no contest” to a single charge. The State dismissed and read in 9 charges at sentencing. It then requested a $5,000 surcharge for the 10 images supporting the conceded and read-in charges. But it also requested (and received) $45,000 for MacDonald’s possession of an additional 90 images for which he was not charged.

Milwaukee County v. R.T.H., 2019AP1763, 10/12/21, District 1 (1-judge opinion, ineligible for publication); case activity

This decision raises an important question of first impression: Are appeals from expired involuntary medication orders ever moot? The court of appeals holds that once the involuntary med order expires, it doesn’t have to address the merits of a claim that there was insufficient evidence to support the order. We think the court of appeals is wrong. Let’s hope that “Robert” files a petition for review.

On September 29, 2021, the court of appeals ordered the publication of the following criminal-law related decision:

State v. Joel R. Davis, 2021 WI App 65 (police unlawfully prolonged traffic stop to research motorist’s bond conditions).

State v. Manuel Garcia, 2021 WI 76, 9/24/21, affirming a published decision of the court of appeals; case activity (including briefs)

As explained in our post on the published decision, the court of appeals held that a defendant’s voluntary statement obtained in violation of Miranda can’t be used in the state’s case-in-chief, even for impeachment if the defendant elects to testify.

State v. Todd DiMiceli, 2020AP1302-CR, District 4, 9/16/21 (not recommended for publication); case activity (including briefs)

Under § 968.375(6), a court-ordered subpoena for electronic communication records must be served within 5 days of issuance. The subpoena used to obtain internet records regarding DiMiceli from Charter Communications wasn’t served till 9 days after issuance. The records obtained led to further investigation and charges that DiMiceli was in possession of child pornography. (¶¶2-7). The delay in service of the subpoena doesn’t entitle DiMiceli to suppression of the evidence obtained with the subpoena because the violation of the 5-day service rule was a technical irregularity or error that did not affect DiMiceli’s substantial rights.

State v. Theophilous Ruffin, 2019AP1046-CR, petition for review of an unpublished court of appeals decision granted 9/17/21; case activity (including briefs)

Issue presented (from the State’s PFR)

Is Ruffin entitled to an evidentiary hearing based on his postconviction allegation that his trial counsel was deficient for not pursuing a theory of self-defense?

State v. Donald P. Coughlin, 2019AP1876-CR, petition for review of an unpublished court of appeals decision granted 9/14/21; case activity (including briefs)

Issues presented (from State’s petition for review)

1. How does a court consider the theory of guilt in an evidence sufficiency claim when an inconsistency exists between a jury instruction and verdict?

2. Must a court accept a jury’s resolution of any vagueness in testimony as jury credibility and weight determinations and must a court then adopt the reasonable inferences that a jury may have drawn from the evidence?

3. Has Coughlin, as the defendant challenging the sufficiency of the evidence, met his heavy burden to overcome the great deference this Court gives to the jury and its verdict to satisfy that the evidence, viewed most favorably to the State and the convictions, was insufficient to sustain the 15 guilty verdicts relating to his sexual assaults of John Doe 2 and John Doe 3?

State v. Chrystul D. Kizer, 2020AP192-CR, petition for review of a published court of appeals decision granted 9/14/21; case activity (including briefs)

Issue Presented (from the State’s PFR)

Does § 939.46(1m) provide a victim of trafficking with a complete defense to first degree intentional homicide?