On Point: 45. WI Supreme Court

State v. Dobbs, 2018AP319-CR, petition for review of a per curiam opinion granted 1/14/20; case activity (including briefs)

Issues (based on Dobbs’ petition for review and SCOW’s order granting review:

1. Did the trial court err in precluding the defense’s expert on false confessions from testifying where, consistent with State v. Smith, 2016 WI App 8, 366 Wis. 2d 613, 874 N.W.2d 610, his opinions were relevant to a material issue, but he would not be offering an opinion on the specific facts of the case?

2. Did the trial court err in allowing Mr. Dobbs’ statements to law enforcement into evidence despite the delay in reading him his Miranda rights and because his statements were involuntary due to his mental and physical conditions?

3. Whether the court of appeals’ decision that Dobbs was in custody for purposes of Miranda warnings is consistent with State v. Morgan, 2002 WI App 124, 254 Wis. 2d 602, 648 N.W.2d 23. If not, whether Morgan should be overruled?

State v. Donavinn D. Coffee, 2020 WI 1, 1/9/20, 2017AP2292, affirming a per curiam court of appeals opinion; case activity (including briefs)

Where to begin?

State ex rel. Wren v. Richardson, 2017AP880-W, 2019 WI 110, affirming a court of appeals unpublished memorandum opinion; case activity (including briefs)

Two weeks ago, we posted “SCOW holds defendants abandoned by counsel to same standards as licensed lawyers,” calling State v. Pope “the most absurd decision this term (still time for worse).” Behold an even more absurd decision: even teenagers who read at 2nd grade level are held to the same standard as licensed lawyers. And, sadly, there’s still time for worse.

State v. Robert James Pope, Jr., 2019 WI 106, affirming an unpublished court of appeals opinion; case activity (including briefs)

In the most absurd decision this term (still time for worse), SCOW has denied a defendant sentenced to life without parole both a direct appeal and a new trial because the court system destroyed all of his trial transcripts. The defendant “sat on his rights,” said the majority opinion, written by Justice Ziegler. When his lawyer failed to file a timely notice of intent to pursue postconviction relief, he should have immediately, without counsel, figured out how to defend his appeal rights and effectively defended them. He didn’t. No relief.

State v. Ryan M. Muth, 2019AP875-CR, petition for review of per curiam opinion granted 12/11/19; case activity (including briefs)

Issues presented (based on petition and  cross-petition for review):

1. Wisconsin’s marital property statutes provide that income accrued during marriage belongs to both spouses. Wisconsin’s restitution statute permits crime victims to recover “income lost” from the “filing of charges or cooperating in the investigation and prosecution of the crime.” Where a crime causes a person’s death, can the deceased person’s adult children recover their spouse’s lost income  as restitution?

2. Where crime victims accept a civil settlement for lost wages and expenses, and the victims also seek restitution for lost wages and expenses, and where the defendant asserts “accord and sanctification,” does the defendant have to produce “extrinsic evidence” showing that the wages and expenses the victim received in the civil settlement are the same wages and expenses the victim seeks as criminal restitution?

State v. Stephan I. Roberson, 2019 WI 102, 12/3/19, affirming a per curiam court of appeals opinion, 2017AP1894, case activity (including briefs)

The result here is simple, and expected, given the current makeup of the court: a five-two majority to overturn State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582. Dubose held that “show up” identifications–those where the police present a witness with only one suspect–were inherently suggestive, and identifications so obtained would be inadmissible unless circumstances rendered the procedure “necessary.” So, now, Wisconsin courts will review claims that a show-up identification should be excluded under the test of State v. Wolverton, 193 Wis. 2d 234, 264, 533 N.W.2d 167 (1995): a defendant must carry the initial burden to show the procedure was impermissibly suggestive, and if he or she does, the state must then prove that the identification is nevertheless reliable under the totality of the circumstances.

State v. Autumn Marie Love Lopez & State v. Amy J. Rodriguez, 2019 WI 101, 11/27/19, affirming a published court of appeals decision; case activity (including briefs)

This appeal asked whether the State may charge multiple acts of misdemeanor retail theft under §943.50  as one felony under §971.36(3)(a).  The justices split 3-2-2. Five of them answered “yes,” but did not fully agree on a rationale for that mandate.  The justices also disagreed over the role titles play in statutory construction and over whether both appellants in a consolidated appeal must file a petition for review.

State v. Matthew Hinkle, 2019 WI 96, 11/12/19, affirming a published court of appeals decision, 2017AP1416, case activity (including briefs)

We’ve posted on this case twice before, first on the published court of appeals decision and then on the supreme court’s grant of the petition for review. The question is easily posed: the statute says that a juvenile is subject to automatic adult court jurisdiction if “the court assigned to exercise jurisdiction under [chs. 48 and 948] has waived its jurisdiction over the juvenile for a previous violation” and the previous case is either pending or ended in conviction. Does “the court” in that phrase mean any juvenile court in the state (so that waiver in any county would forever precluded juvenile jurisdiction in every county), or does it mean the specific juvenile court in the county where criminal charges are contemplated (so that each county would have a chance to make the waiver decision in its own courts)?

State v. Roy S. Anderson, 2019 WI 97, 11/15/19, affirming a per curiam court of appeals decision; case activity (including briefs)

Act 79 permits law enforcement to search a person on probation, parole or extended supervision based on reasonable suspicion (not probable cause) that the person, is is about to, or has committed a violation of a condition of his release. In its first decision on this law, SCOW holds 7-0 that the officer here had (a) knowledge of Anderson’s supervision status before conducting the search at issue, and (b) the reasonable suspicion needed to conduct the search.

State v. David Gutierrez, 2017AP2364-CR, petition for review of a published court of appeals decision granted 11/13/19; case activity (including briefs)

Issue (based on the State’s Petition for Review):

1. Did the court of appeals violate the standard of appellate review of trial court evidentiary rulings by holding the trial court erred in deciding to exclude evidence offered by the defendant that DNA from other men was found on the clothing of the complainant in a child sexual assault prosecution?

2. Did the court of appeals improperly apply Wis. Stat. § 972.11(2)(b), Wisconsin’s rape shield law, when it held the defendant was not offering the DNA evidence as evidence concerning the victim’s prior sexual conduct?