On Point: 45. WI Supreme Court

State v. James Timothy Genous, 2021WI 50, reversing an unpublished court of appeals opinion, 2019AP435-CR, 6/4/21; case activity (including briefs)

An officer saw Genous sit in a parked car, engine running and headlights on, in a residential neighborhood at 3:36 a.m.  A woman emerged from a house, entered the car for 10 to 15 seconds, and returned to the house.  Although the officer could not see what happened inside the car, the woman appeared to match the description of a female drug user who was known to live in the house. Plus the officer had heard that this area had a reputation for drug trafficking. In a 4-3 opinion, SCOW held that these facts gave the officer reasonable suspicion to stop Genous for possible drug dealing.

State v. Nhia Lee, 2019AP221-CR, petition for review granted 5/19/21; case activity (including briefs)

Issues:

Whether a circuit court is required to appoint counsel at the county’s expense when the SPD is unable to do so within 10 days of the defendant’s initial appearance?

Whether Lee’s rights to due process, to counsel, and to a speedy trial were violated by his protracted pretrial confinement as he waited for the State Public Defender to find counsel for him.

State v. Tavodess Matthews, 2021 WI 42, reversing a published court of appeals opinion, 2020 WI App 33, 5/14/21, case activity (including briefs)

Section 801.58(1) allows a party to a civil case to request a new judge if, among other things, he files a written substitution request before “the hearing of any preliminary contested matter.” Matthews’ case concerns a substitution request made after the circuit court granted a motion to adjourn a Chapter 980 probable cause hearing regarding sexually violent persons. But since Chapter 980 commitments are civil proceedings, this unanimous SCOW opinion, which reverses a published court of appeals’ opinion, is an important clarification of the law governing all civil cases.

State v. Mitchell L. Christen, 2019AP1767-CR,  affirming an unpublished court of appeals decision; 5/4/21, case activity (including briefs)

Christen was armed while drunk in his apartment when he threatened to shoot his roommates.  A jury found that he violated §941.20(1)(b), which makes it a crime to operate or go armed with a firearm while intoxicated. Christen challenged the constitutionality of §941.20(1)(b) as applied to him because it burdened his 2nd Amendment right to armed self-defense under District of Columbia v. Heller, 554 U.S. 570 (2008). In a 5-1-1 opinion, SCOW rejects this challenge. Hagedorn concurs. R.G. Bradley dissents arguing in part that the prevalence of guns and copious alcohol consumption in the colonies show that the Framers guaranteed Americans the right to be armed while drunk.

State v. Teresa L. Clark, 2020AP1058-CR, bypass granted 4/27/21; case activity

Issue: (adapted from State’s COA brief):

When the State uses a prior OWI conviction to enhance the charge and sentence for a subsequent OWI offense, a defendant may collaterally attack the prior conviction. If the defendant proves that her right to counsel was violated in the prior case, the conviction may not be used to enhance the charge and sentence in the new case. Does the burden shift to the State when there is no transcript available to show that the circuit court violated the defendant’s right to counsel?

State v. Avant Rondell Nimmer, 2020AP878-CR, petition for review granted 3/24/21; case activity (including links to briefs and PFR)

Issue presented (composed by On Point):

Did police responding to a ShotSpotter alert of shots fired have reasonable suspicion to stop and frisk Nimmer based on his proximity to the address in the alert so close to the alert and Nimmer’s response to the officer’s arrival on the scene?

State v. Mark D. Jensen, 2021 WI 27, 3/18/21, affirming a court of appeals summary disposition; case activity (including some briefs)

Julie Jensen died by poisoning in 1998. The state eventually charged her husband, Mark, with having killed her; the defense was that she had died by suicide. Before her death Julie had made oral and written statements to the effect that Mark would be responsible if something happened to her. She wasn’t available to testify at the trial, of course, and Mark moved to exclude these statements on Confrontation grounds. Our supreme court now holds that, when it held these statements testimonial in a prior appeal (in 2007), it established the law of the case; it further concludes that SCOTUS has not altered the law so much since then that the law-of-the-case doctrine should give way. So, it remands for a new trial, without the statements.

State & T.A.J. v. Alan S. Johnson, 2019AP664-CR, petition for review of a published court of appeals decision granted 2/26/21; case activity (including briefs)

Issues presented (from Johnson’s PFR)

Does an alleged victim in a criminal case have standing under the 2020 crime victims’ rights constitutional amendment to submit legal arguments in opposition to the defendant’s motion for in camera review pursuant to the Shiffra/Green line of cases?

Did the 2020 constitutional amendment apply retroactively to a case that was commenced before the amendment was ratified?

Sauk County v. S.A.M., 2019AP1033, petition for review granted 2/24/21; case activity

Issues for review:

1. Whether S.A.M.’s appeal from his recommitment is moot because it expired before S.A.M. filed his notice of appeal.

2. Whether the county failed to meet its burden of proving dangerousness by clear and convincing evidence.

3. Whether S.A.M. was denied procedural due process because the county failed to provide particularized notice of the basis for his recommitment. including which standard of dangerousness was being alleged.

4.  Whether this court has the authority, through its “superintending and administrative authority over all courts” (Wis. Const. art. VII, § 3(1)) and/or its authority to “regulate pleading, practice, and procedure in judicial proceedings in all courts” (Wis. Stat. § 751.12(1)), to require the court of appeals to expedite the disposition of appeals under Wis. Stat. ch. 51, or in some other manner to ensure that appellants under Wis. Stat. ch. 51 receive an appeal that addresses the merits of the appellants’ contentions?*

Waukesha County v. E.J.W., 2020AP370, petition for review granted 2/26/21, reversed, 2021 WI 85; case activity

Issue for review:

Section 51.20(11) provides that the subject of a commitment proceeding must demand a jury trial 48 hours in advance of the time set for the final hearing. When the court adjourns the hearing for good cause to appoint new counsel, does that reset the 48 hours for demanding a jury trial?