On Point blog, page 77 of 81
Instructing jury on wrong law requires new trial
State v. Michael W. Bryzek, 2016 WI App 48; case activity (including briefs)
Bryzek had already completed most of his alleged acts when a 2010 statute broadened the definition of theft by a bailee; the court of appeals agrees with the circuit court that the jury should have been instructed on the narrower element.
Parking violation justifying investigatory detention? Or “parking while black”?
United States v. Randy Johnson, 7th Circuit Court of Appeals No. 15-1366, 5/17/16
Taking Whren v. United States, 517 U.S. 806 (1996), to its logical extreme, the Seventh Circuit holds that detaining the passengers in a car parked too close to a crosswalk was reasonable under the Fourth Amendment.
SCOW to review juror bias issues
State v. Jeffrey P. Lepsch, 2015AP2813-CR, petition for review granted 5/11/16; case activity (including briefs)
Issues (composed by On Point)
Were one or more jurors at Lepsch’s trial objectively or subjectively biased because they did not provide “unequivocal assurances” that they could set aside prior beliefs (about, e.g., the guilt of the defendant and the greater credibility of police) and decide the case solely on the evidence?
Did the prior beliefs of some jurors, and the lack of sufficient inquiry into their ability to set them aside, create an appearance of bias sufficient to deny Lepsch’s due process right to an impartial jury?
Were Lepsch’s rights to be present and to a public trial violated when the prospective jurors were sworn in the jury assembly room, outside the presence of the court and counsel?
Was Lepsch denied due process or the effective assistance of counsel by the trial court’s failure to give him the 7th peremptory strike to which he was entitled and by failing to strike 5 jurors for cause, forcing him to use 5 of his 6 strikes to remove them?
Traffic stop unreasonable; officer had no reason to conclude driver violated parking statute
State v. Justin Carl Herman Hembel, 2015AP1220-CR, 5/10/16, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)
Police lacked probable cause to believe Hembel violated § 346.54, governing “How to park and stop on streets,” so the stop of Hembel was unlawful.
SCOTUS: Extortionist can conspire to commit extortion with person whom he is extorting
Ocasio v. United States, USSC No. 14-361, (May 2, 2016), affirming United States v. Ocasio, 750 F.3d 399, (4th Cir. 2014); SCOTUSblog page (includes links to briefs and commentary)
That post title is Justice Thomas’s view of the majority’s decision in this case, and he is not the lone dissenter. The Hobbs Act makes it a crime to obstruct, delay or affect commerce by extortion. It defines extortion as the obtaining of property from another with his consent, induced by wrongful use of force, violence or fear, or under color of official right. 18 U.S.C. §1951(b)(2). In a split decision with an odd alignment of justices, the majority holds that “a group of conspirators can agree to obtain property ‘from another’ in violation of the [Hobbs] Act even if they agree only to transfer property among themselves.” (Slip op. Sotomayor, J. dissenting at 1).
Potential of juror coercion during deliberations requires new trial
United States v. Lemurel E. Williams, 7th Circuit Court of Appeals No. 15-1194, 4/26/16
Williams is entitled to a new trial because under the totality of the circumstances, the jury’s continued deliberations after an aborted delivery of the initial verdict were impermissibly coercive.
Mr. Doe goes to Washington, perhaps
As readers may know, the prosecutors in the so-called “John Doe” cases have filed a petition for certiorari in the United States Supreme Court.
Court of Appeals asks SCOW to decide how to raise claims that counsel at revocation hearing was ineffective
State ex rel. Antjuan Redmond v. Brian Foster, 2014AP2637, District 2, 4/27/16, certification granted 6/15/16, certification vacated and case returned to the court of appeals 9/15/16; case activity (including briefs)
Issue:
Whether an offender whose parole and extended supervision was revoked after a revocation hearing has an adequate remedy other than a writ of habeas corpus to pursue a claim that the attorney who represented him during the hearing rendered constitutionally ineffective assistance? Specifically, must the offender raise a claim of ineffective assistance of revocation counsel in a motion to the division of hearings and appeals (DHA) in the department of administration?
SCOW: No right-to-testify colloquy needed in second NGI phase
State v. James Elvin Lagrone, 2016 WI 26, 4/22/2016, affirming an unpublished court of appeals decision, majority opinion by Ziegler, dissent by A.W. Bradley (joined by Abrahamson); case activity (including briefs)
Lagrone wasn’t told he had the right to testify during the second, mental responsibility phase of his NGI trial. He alleged in his postconviction motion that he didn’t know he had any such right. The trial court denied the motion without a hearing. The supreme court now affirms that denial in an opinion that neither (1) decides whether Lagrone had a right to testify during the second phase, nor (2) explains how the denial of that right, if it exists, can be raised in postconviction proceedings.
5-6 sleepovers per week + 2 baskets of laundry = “resides” for purposes of domestic abuse surcharge law
State v. Donald Weso, 2015AP1004-Cr, 4/19/16, District 3 (1-judge opinion; ineligible for publication); case activity (including briefs)
This unpublished opinion appears to decide an issue of first impression for Wisconsin. Section 973.055(1) requires a court to impose a $100 surcharge if it finds that an adult convicted of domestic abuse committed the act “against an adult with whom [he] resides. ” The novel question is: what does “resides” mean? The answer is only a little more involved than the title to this post suggests.