On Point

State v. Christopher D. Wilson, 2020AP1014-CR, petition for review of an unpublished decision granted 11/17/21; case activity (including briefs)

Issue presented (from the petition):

Did the police have implicit license to enter the backyard of Mr. Wilson’s home through a gated privacy fence?

State v. Jeffrey L. Moeser, 2019AP2184-CR, petition for review of an unpublished decision granted 11/18/21 ; case activity (including briefs)

Issue presented (from the petition):

Whether the ‘Oath’ requirement under the Fourth Amendment of the US Constitution and Article 1, Section 11 of the Wisconsin Constitution require a police officer to swear an oath to the truthfulness of an affidavit used to obtain a search warrant to conduct an evidentiary blood draw in a criminal OWI matter?

State v. Alex Stone Scott, 2021 WI App 84; case activity

This split, recommended-for-publication opinion, merits further review.  Scott drove M.S.’s truck without her permission and damaged it in the process.  Undamaged, the truck’s Kelly Bluebook value was $2,394. M.S. testified that she did not want to repair the truck, but the circuit court nevertheless awarded restitution based on the cost of repair: $5,486.37. It also found that Scott, who was mentally ill and living on a minuscule SSDI benefit, was able to pay it. Judges Grogan and Neubauer affirmed. Reilly dissented.

State v. Roman T. Wise, 2021 WI App 87; case activity (including briefs)

Wise was convicted of 4 counts of fleeing or eluding an officer under §346.04(3). He claimed trial counsel was ineffective for failing to seek dismissal of 3 of his 4 charges on the grounds that they were multiplicitous. The court of appeals held that the charges were not multiplicitous because each one required proof of a different element or fact. Thus, the circuit court appropriately denied Wise’s ineffective assistance of counsel claim without a hearing.

State v. Laverne Ware, Jr., 2021 WI App 83; case activity (including briefs)

When the parties filed their initial briefs in this appeal, it was a community-caretaker case. But during briefing, the Supreme Court decided Caniglia v. Strom, which made clear that this doctrine doesn’t permit searches in the home (in the process invalidating some Wisconsin cases). So now–as the Caniglia concurrences foretold–it’s instead a case about the “emergency aid exception.”

Nelson Garcia, Jr. v. Brian Foster, 20-CV-335 (E.D. Wis. 11/9/21).

Garcia challenged his robbery conviction on two grounds. (1) He was denied his right to counsel at a post-arrest police line up. (2) He was denied his right to go pro se at trial. While habeas wins are rare, what’s most remarkable is how blatantly the Wisconsin Court of Appeals violated SCOTUS precedent on both issues. To top that, SCOW granted review and then split 3-3 allowing the court of appeals decision to stand. Now, at long last, the Eastern District grants Garcia the relief SCOTUS requires.

State v. Steven Tyrone Bratchett, 2020AP1347-Cr, 11/9/21, District 1, (not recommended for publication), case activity (including briefs)

A jury convicted Bratchett of burglary, armed robbery, and attempted 3rd-degree sexual assault.  Bratchett argued and lost 6 issues on appeal. The court of appeals split over two of them, and they are focus of this post. The majority (Judges White and Donald) held that: (1) the photo array the victim used to identify Bratchett, while impermissibly suggestive, was still reliable, and (2) trial counsel was not ineffective for failing to impeach the victim with her inconsistent statement. Judge Dugan would reverse on these issues and grant a new trial.

State v. Terence S. O’Haire, 2021AP564, District 4, 11/4/21, (i-judge opinion, ineligible for publication); case activity (including briefs)

O’Haire argued that an officer coerced his consent to a PBT , so its results and his refusal to submit to an evidentiary breath test should have been suppressed. The officer told O’Haire that he didn’t have to consent to a PBT, but then the officer threatened to take O’Haire to jail if he refused. When O’Haire hesitated, the officer ordered him to turn around and place his arms behind his back. The court of appeals held that the officer’s threat did not vitiate O’Haire’s consent.

State v. T.E.-P., 2021AP1473, 11/9/21, District 1 (1-judge, ineligible for publication); case activity

There’s no online access to briefs in TPR appeals, so we can’t check the court of appeals’ characterization of T.E.-P.’s appeal.  Allegedly, she conceded that the circuit considered all 6 “best interest of the child” factors in §48.426(3) and asked the court of appeals to reweigh them. The court of appeals deferred to the circuit court’s weighing of the factors and evidence under State v. Margaret H., 2000 WI 42, ¶¶29, 35, 234 Wis. 2d 606, 610 N.W.2d 475.

Juneau County DHS v. B.J., 2021AP1359, 2021AP1360, 2021AP1361, District 4, 11/4/21 (one-judge decision; ineligible for publication); case activity The circuit court properly granted summary judgment on the TPR petitions against B.J., based on: B.J.’s was conviction for sexually assaulting one of the children, among other crimes, for which he was sentenced to 50 years of […]