On Point blog, page 3 of 11
Seventh Circuit’s rare habeas grant notes COA misapplication of Strickland and upbraids state for false claims about the record
Terez Cook v. Brian Foster, Warden, 7th Circuit Court of Appeals No. 18-2214, 1/29/2020
Pursuing a federal writ of habeas corpus is always a long shot; in non-capital cases fewer than 1% of petitions are successful. Terez Cook gets it done here, convincing the Seventh Circuit his lawyer was ineffective at his trial for a home-invasion robbery (and that the Wisconsin court of appeals’ decision to the contrary was not just wrong, but unreasonable). The federal court is puzzled by a few aspects of our state court’s denial of Cook’s claims. But the thing that seems to push that denial over the line into unreasonableness–AEDPA‘s stringent requirement for habeas relief–is that it got a crucial fact wrong. The state court’s opinion relies on a confession by Cook–a confesssion for which there’s apparently no evidence. How did our court go astray? Well, the state described the (non-existent) confession in its brief, and then Cook’s direct-appeal counsel apparently didn’t check the facts, and neither did the court of appeals.
COA finds no error in denying mistrial for 3 evidentiary issues
State v. Ross Harris, Jr., 2018AP1667, 10/24/2019, District 4 (one-judge opinion; ineligible for publication); case activity (including briefs)
The charges in this case, disorderly conduct and battery, arose from an altercation in a hospital elevator. The state said Harris, newly a grandfather, had attacked A.D., the fiancé of his newborn grandchild’s maternal grandmother, while both were visiting the baby. Harris said it was A.D. who had attacked him.
COA: Other-acts exception for first-degree sexual assault is constitutional
State v. Christopher L. Gee, 2019 WI App 31; case activity (including briefs)
Christopher Gee was accused of sexually assaulting two women at knifepoint; one of the women had come to Gee’s apartment building because someone there had agreed to pay her for sex. He admitted to police that he’d had sex with this second woman, but said it was consensual and he’d simply refused to pay her afterward–something he said he often did. (¶10).
Court of appeals holds defendant can be forced to choose: wear a stun belt or don’t attend your trial
State v. Danny L. Benford, 2017AP2520-CR, 3/26/19, District 3 (not recommended for publication); case activity (including briefs)
The Eau Claire County Sheriff Department’s policy is to require all defendants appearing for trial to wear a stun belt under their clothing. Benford did not want to wear one because he didn’t trust the sheriff’s not to zap him for no good reason. The trial court conducted an inquiry into the need for the stun belt, concluded it was necessary, and found no other suitable alternative to it.
State’s amendment of charges at the close of evidence affirmed
State v. Brian M. Smits, 2017AP2141-Cr, District 2, 11/20/18, (1-judge opinion, ineligible for publication); case activity (including briefs)
The State charged Smits with obstruction, OWI 2nd, and operating with a PAC 2nd. The case was tried to a jury, After both sides rested, the State filed an amended complaint containing a 2nd obstruction charge. The court of appeals affirmed because Smits wasn’t prejudiced by the amendment.
Judge’s answer to jury question in absence of defendant and counsel was harmless error
State v. Deshawn Harold Jewell, 2017AP2503-CR, 10/30/18. District 1 (not recommended for publication); case activity (including briefs)
Jewell claims that he is innocent of armed robbery, so his identity was an issue at trial. During deliberations, the jury asked the trial court for the “six pack” of pictures of people who appeared in the police photo array that the victim used to identify him. They also asked a question about how the photos were numbered. Jewell and his lawyer were not present and had no input into the answer.
GAL’s closing argument at TPR trial wasn’t prejudicial
State v. T.W., 2018AP967 & 2018AP968, District 1, 8/21/18 (one-judge decision; ineligible for publication); case activity
At the trial on the petition to terminate T.W.’s parental rights, the GAL argued in closing that the jury should consider the interests of the children. T.W.’s lawyer didn’t object, but the court of appeals holds that failure wasn’t prejudicial and so rejects T.W.’s claim that trial counsel was ineffective.
No error in denying request to delay trial
State v. Ronnie Cecil Peebles, 2017AP2536-CR, District 4, 8/16/18 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court didn’t err in denying the adjournment request Peebles made on the morning of trial because he said he was feeling ill.
Jury learning PBT was requested not grounds for mistrial
State v. Dale R. Delvoye, 2017AP833, 7/3/18, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)
At Delvoye’s OWI trial, an officer testified that as part of the stop he asked Delvoye to take a preliminary breath test. Counsel objected and moved for a mistrial. The trial court denied the mistrial, and the court of appeals affirms.
Challenges to admission of transcript testimony by unavailable witness, amendment of information, and sentence fail
State v. Larry L. Garner, 2016AP2201-CR, 4/17/18, District 1 (not recommended for publication); case activity (including briefs)
The State charged Garner and 3 other co-defendants with 2 counts of armed robbery use of force, PTAC, and felony murder, PTAC. The trial court ordered separate trials. A mistrial occurred due to juror misconduct, so the court held a second trial where the jury found Garner guilty on all 3 counts. On appeal the lead issue was whether the circuit court violated Garner’s confrontation rights by allowing the State to present his co-defendant’s testimony from the 1st trial at his 2nd trial. The answer, according to the court of appeals, is “no.” Garner’s challenges to the State’s amended information and to his sentence also failed.