On Point: 41. Trial Procedures

State v. Mychael R. Hatcher, 2015AP297-CR, District 3, 8/16/16 (not recommended for publication); case activity (including briefs)

Hatcher was convicted of sexually assaulting an intoxicated person, obstructing an officer, and bail-jumping. This 38-page court of appeals decision rejects claims that the trial court erred in refusing to accept Hatcher’s guilty plea, admitting expert testimony during the State’s rebuttal, admitting evidence of the victim’s flirting, and ineffective assistance of counsel for failure to move for suppression and for introducing into evidence a report showing the victim’s BAC.

Joseph J. Jordan v. Randall R. Hepp, 7th Circuit Court of Appeals No. 14-3613, 2016 WL 4119862, 8/3/16

Jordan claims the Wisconsin courts unreasonably applied clearly established federal law when they held that he was not denied the right to represent himself and that his trial lawyer was not ineffective for failing to object to the prosecutor’s improper vouching for a police witness’s credibility. The Seventh Circuit okays the state courts’ decision on self-representation but orders a hearing on Jordan’s ineffective assistance claim.

State v. Russell C. Troka, 2016 WI App 35; case activity (including briefs)

Because the record does not reflect an adequate basis for a finding of manifest necessity warranting a mistrial over Troka’s objection, retrying Troka would violate his right against double jeopardy.

State v. Tony Phillip Rogers, 2015AP921-CR, 4/12/16, District 1 (not recommended for publication); case activity (including briefs)

Though the complainant in Rogers’s child sexual assault prosecution made statements to her mother about “hearing voices” and needing mental health assistance, trial counsel was not deficient for failing to move for an in camera review of her treatment records because he could not have made the materiality showing needed under State v. Shiffra, 175 Wis. 2d 600, 608-09, 499 N.W.2d 719 (Ct. App. 1993), and State v. Green, 2002 WI 68, ¶¶32-34, 253 Wis. 2d 356, 646 N.W.2d 298.

Review of an unpublished court of appeals decision; affirmed 2016 WI 26; case activity (including briefs)

Issues (composed by On Point)

Does a defendant have the right to testify at the mental responsibility phase of a bifurcated criminal proceeding?

If so, is an on-the-record colloquy regarding the waiver of the right to testify required?

State v. James Elvin Lagrone, 2013AP1424-CR, District 1, 4/7/15 (not recommended for publication), petition for review granted 9/9/15; affirmed 2016 WI 26; case activity (including briefs)

Does a defendant who has raised an NGI defense have the right to testify in the mental responsibility phase of the NGI proceeding? That’s the novel issue in this case. But the court of appeals doesn’t decide the question. Instead, the court ignores relevant binding case law and, relying on a case that doesn’t apply, concludes that if Lagrone had the right to testify, any error in denying it was harmless.

State v. Eddie Lee Anthony, 2015 WI 20, affirming unpublished COA decision; click here for docket and briefs

Resolving an issue of first impression, SCOW has decided that a defendant may forfeit his constitutional right to testify by stating an intent to bring up irrelevant matters or by engaging in conduct incompatible with the assertion of that right. Also, the erroneous denial of the right to testify is subject to a harmless error analysis–even where the record shows the defendant would testify to both relevant and irrelevant matters.

State v. Beal, 2014AP1362, 2/24/15, District 1 (not recommended for publication); click here for briefs and docket

During his opening, defense counsel told the jury that Beal would testify to a version of events that contradicted the State’s version, but then he broke that promise. Beal claimed ineffective assistance of trial counsel. The court of appeals and held that Beal didn’t even deserve a hearing on his claim.

Glebe v. Frost, USSC No. 14-95, 11/17/14 (per curiam), reversing Frost v. Van Boening, 757 F.3d 910 (9th Cir. 2014) (en banc); docket and Scotusblog page

Supreme Court precedent has not clearly established that improper restriction of a defendant’s closing argument is structural error, so the Ninth Circuit erred in granting habeas relief on that ground.

State v. Ryan P. O’Boyle, 2014AP80-CR, District 1, 11/4/14 (not recommended for publication); case activity

O’Boyle’s claims of ineffective assistance of counsel are rejected because trial counsel’s performance wasn’t deficient.