On Point: Important Posts

State v. George Steven Burch, 2021 WI 68, 6/29/21, on certification from the court of appeals, affirming a judgment of conviction; case activity (including briefs)

The circuit court properly exercised its discretion in allowing the state to introduce evidence relating to Fitbit data without requiring expert testimony on the reliability of the device.

State v. Anthony M. Schmidt, 2021 WI 65, 6/18/21, on bypass from the court of appeals; case activity (including briefs)

“We also conclude that the child pornography surcharge applies to images of child pornography that form the basis of read-in charges of sexual exploitation of a child or possession of child pornography, so long as those images of child pornography are connected to and brought into relation with the convicted individual’s offense of sexual exploitation of a child or possession of child pornography.” (¶61). What does it mean for images to be “brought into relation with” an offense? What kind of inquiry is it? Factual? Legal? We don’t know, the partial dissent doesn’t know, and as it observes, the majority seems also not to know, as they refrain from addressing any facts but the ones before them. The most reliable SCOW imperative–upholding criminal sanctions–seems once again to have made the “law development” function an afterthought.

On June 30, 2021, the court of appeals ordered the publication of the following criminal law related decision:

State v. Alijouwon T. Watkins, 2021 WI App 37 (events that happen after trial can’t be basis for newly-discovered evidence claim)

State v. Alan M. Johnson, 2021 WI 61, 6/16/21, affirming in part and reversing in part a published decision of the court of appeals; case activity (including briefs)

In a case presenting a highly unusual set of facts, the supreme court agrees with the court of appeals that Johnson is entitled to a new trial because the circuit court erred in refusing to instruct the jury on perfect self-defense. However, the supreme court reverses the court of appeals’ decision as to the admissibility of other-acts evidence relating to the victim.

State v. Westley D. Whitaker, 2020AP29-CR, petition for review of a published decision of the court of appeals granted 6/16/21; case activity (including briefs)

Issues Presented (from the PFR and supreme court order granting review)

1. Does it violate the First and Fourteenth Amendments and Article I, Section 18 of the Wisconsin Constitution to consider a defendant’s religious identity and impose a sentence intended to deter crime solely within his religious community?
2. If a sentencing court may consider a defendant’s religious association to deter other members of a religious community, does the “reliable nexus” test of State v. Fuerst, 181 Wis. 2d 903, 512 N.W.2d 243 (Ct. App. 1994), and State v. J.E.B., 161 Wis. 2d 655, 469 N.W.2d 192 (Ct. App. 1991), require congruity between the offense and the activity protected by the First Amendment?
3. Does the sentencing factor/objective of “protection of the public” permit the sentencing court to increase the sentence imposed on the defendant to send a message to an identified set of third parties that they should alter their behavior in the future, apart from generally being deterred from committing offenses like those committed by the defendant? (Added by the supreme court.)

State v. Christopher W. Yakich, 2019AP1832-CR & 2019AP1833-CR, petition for review of an unpublished decision of the court of appeals granted 6/16/21; case activity (including briefs)

Issue Presented (from the PFR):

When a defendant has been found not guilty by reason of mental disease or defect in two separate cases and is subject to two separate commitment orders, does the circuit court have authority to run the terms of commitment consecutive to one another?

Outagamie County v. X.Z.B., 2020AP2058, 6/22/2121, District 3, (1 judge opinion, ineligible for publication); case activity

This case involves the recommitment of a protectively placed person based on §51.20(1)(a)2.c., the 3rd standard of dangerousness.  The court of appeals reversed the circuit courts’ recommitment order for insufficient evidence. And, for the second time in one week, it held that when circuit courts fail to make the requisite factual findings for a commitment that has expired, the remedy is reversal not remand for further fact-finding.

Eau Claire County v. J.M.P., 2020AP2014-FT, 6/22/21, District 3; (1-judge opinion, ineligble for publication); case activity

A month ago District 3 reversed the recommitment order in this case because the circuit court had violated Langlade County v. D.J.W. That is, the circuit court ordered a recommitment without making specific factual findings tied to one or more the standards of dangerousness in §51.20(1)(a)2. Thus, the court of appeals remanded the case and ordered the required factfinding. Upon reconsideration, the court of appeals has issued a new decision holding that the correct remedy is outright reversal.

State v. Adam W. Vice, 2021 WI 63, 6/16/21, reversing a published decision of the court of appeals; case activity (including briefs)

The circuit court and court of appeals held Vice’s post-polygraph confession was involuntary because the police officers interrogating him referred multiple times to Vice’s polygraph results (he failed), told him that proved he remembered the crime despite his denials, but never told him the polygraph results were inadmissible as evidence. As we predicted, the state petitioned for review, the supreme court took the case, and, in an opinion essentially devoid of law development, holds Vice’s confession wasn’t coerced.

State v. Joseph G. Green, 2020AP298-CR, petition for review granted 6/16/21, case activity (including briefs)

Issue (from the State’s petition):

Does a circuit court have authority to order tolling of the 12-month statutory time limit for bringing an incompetent criminal defendant to trial competency?