On Point: 41. Trial Procedures

Racine County HSD v. R.E., 2016AP2039, 3/15/2017, District 2 (one-judge decision; ineligible for publication); case activity

The record supported the circuit court’s grant of partial summary judgment on grounds of abandonment because there was no genuine issue of material fact as to whether R.E. had failed to visit or communicate with her child, S.E., for a period of three or more months, § 48.415(1)(a)2.

Review of an unpublished court of appeals decision; case activity (including briefs)

Issues (composed by On Point)

1. Whether the prosecutor’s closing argument impermissibly shifted the burden of proof by telling the jury that in order to acquit the defendant they would have to believe the complaining witnesses were lying, that there would have to be evidence of a reason for them to lie, and that the defendant had presented no reason to believe they were lying.
2. Whether the defendant was deprived of the right to effective assistance of counsel because trial counsel did not object to the jury being given unredacted exhibits containing inadmissible information that one complainant had not had sexual intercourse before the assault alleged in this case.

State v. Ricky C. Anderson, 2017 WI App 17; case activity (including briefs)

Ricky Anderson pled to a sexual assault by telephone from prison, with his attorney, the prosecutor and the judge all in the courtroom. The court of appeals concludes the court did not do enough to establish either that Anderson knowingly waived his statutory right to be physically present or that the telephone connection was adequate to allow his meaningful participation in the hearing.

State v. Robert Mario Wheeler, 2016AP55-CR, 2/21/2017, District 1 (not recommended for publication); case activity (including briefs)

Robert Wheeler was tried for reckless injury and being a felon in possession of a gun arising out of a single shooting incident. To keep the jury from hearing about his status as a felon, the parties stipulated that he was and agreed that the gun possession charge would be decided by the court. Wheeler’s counsel specifically noted the possibility that the two counts could be decided differently, given the different factfinders. (¶5).

State v. Anthony Colon, 2016AP1071-CR, 2/7/17, District 1 (1-judge opinion; ineligible for publication); case activity (including briefs)

Colon was on trial for 2 felonies and 3 misdemeanors. During a break in deliberations, the bailiff happened to be transporting Colon to the court room. Colon was wearing street clothes, but he was chained to other defendants who were wearing orange jail garb. Upon learning that some of Colon’s jurors may have seen him that way, defense counsel asked the judge to question the jury, but he did not move for a mistrial.

State v. Michael Steel, Jr., 2016AP796-CR, District 3, 2/7/17 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court didn’t erroneously exercise its discretion in denying Steel’s requests for a new lawyer and an adjournment on the morning of trial.

State v. Michael L. Washington, 2017 WI App 6, petition for review granted 4/10/17, affirmed, 2018 WI 3; case activity (including briefs)

Michael Washington was set to go on trial for burglary and obstructing an officer. On the morning of the first day of trial, before voir dire, Washington began complaining about his attorney, engaged in a contentious dialogue with the judge, and then “semi was removed and semi left on his own.” Voir dire and trial went on without him; he was occasionally contacted in his jail cell and refused to come back to the courtroom. He was convicted, and on appeal argues that his statutory (as opposed to constitutional) right to presence was violated because the statutory conditions for waiving that right were not met.

State v. Brenda S. Webster, 2016AP225-CR, District 3, 11/15/16 (not recommended for publication); case activity (including briefs)

M.P., the complaining witness at Webster’s trial, for robbery of a grocery store, spoke only Spanish, so she testified through an interpreter. On three occasions the interpreter mistranslated M.P.’s testimony. The court of appeals holds the interpreter’s mistakes, considered individually or together, weren’t sufficiently prejudicial to warrant a new trial.

On review of a per curiam opinion; case activity (including briefs)

Issues:

1. Which statute governs the service of a subpoena in a criminal case: §885.03 which provides that a subpoena may be left at a witness’s abode or §805.07 and §801.11 which require reasonable diligence to personally serve a witness before leaving the subpoena at her abode?

2. Whether trial counsel was ineffective for failing to argue that he had properly served the witness with a subpoena per §885.03? If not, then whether trial counsel was ineffective for failing to attempt to serve the witness personally before leaving the subpoena at her abode as required by §801.11.

State v. Micha S. Pruitt, 2016AP251-CR, District 4, 8/18/16 (one-judge decision; ineligible for publication); case activity (including briefs)

The statute permitting telephone proceedings in criminal cases, § 967.08, does not permit the presentation of testimony by telephone during a criminal jury trial.