On Point: 45. WI Supreme Court

Byrd v. United States, USSC No. 16-1371, 2018 WL 2186175 (May 14, 2018), vacating United States v. Byrd, 679 Fed. Appx. 146 (3rd Cir. 2017); SCOTUSblog page (includes links to briefs and commentary)

Terrence Byrd was pulled over while driving a rental car with no passengers. Officers quickly realized the rental agreement for the car did not name him as the renter or an authorized driver. Though Byrd told the officers his friend had rented it, they decided he had “no expectation of privacy” and searched the car, finding body armor and heroin.

Both the district court and Third Circuit agreed with the officers: a driver not on the rental contract has no standing to complain about the search of a rental car. But all nine members of the Court conclude to the contrary: at least where a driver’s possession of the vehicle is not akin to having stolen the car (a murky caveat the Court does not today clarify), mere breach of the rental contract does not negate a reasonable expectation of privacy.

State v. Anthony Jones, 2018 WI 44, 5/4/2018, affirming an unpublished summary order, 2015AP2665, case activity

We noted in our post on the grant of Jones’s PFR that at the time there were “exactly zero Wisconsin appellate cases holding expert testimony inadmissible under Daubert.” That’s still true.

State v. David McAlister, Sr., 2018 WI 34, 4/17/18, affirming an unpublished court of appeals order, 2014AP2561; case activity

A jury convicted McAlister in 2007 of three counts having to do with an attempted and a completed armed robbery. The state’s case was founded on the testimony of two men (Jefferson and Waters) who had committed the crimes: they said McAlister was also involved. At trial, McAlister’s counsel impeached them by showing they had received consideration from the state in exchange for their testimony. But he couldn’t provide any direct evidence they had lied. Now he can, but the SCOW majority says it’s not good enough, even to get a hearing on his motion.

State v. David Hager, Jr. and State v. Howard Carter, 2018 WI 40, 4/19/18, reversing (Hager) and affirming (Carter) published court of appeals decisions, 2015AP330 & 2015AP1311, case activity (Hager) (Carter)

With these consolidated cases our supreme court maintains its perfect record for the term: it has decided every single criminal/commitment case as the state has requested. It does so here with splintered opinions that fail to generate a holding. The result is that we have no binding precedent on the 2013 amendments to Wis. Stat. § 980.09–the standard a committed person must meet to receive a discharge trial. Or do we? It’s basically anybody’s guess. Hang on.

Winnebago County v. J.M., 4/18/18, 2018 WI 37, affirming an unpublished court of appeals opinion, 2016AP619, case activity.

This opinion will interest lawyers who handle Chapter 51 cases and appellate lawyers of all stripes. It establishes that persons undergoing Chapter 51 mental commitments are entitled  to the effective assistance of counsel and formally adopts the Strickland test for ineffective assistance. It further holds that, due to the overwhelming evidence of dangerousness in this case, J.M. was not prejudiced when his counsel failed to object to him appearing before the jury wearing prison clothes accompanied by uniformed guards–even as he testified. Of particular interest to appellate lawyers, SCOW granted a motion to strike significant parts of Winnebago County’s oral argument because its lawyer asserted facts outside the appellate record.

State v. Brian Grandberry, 2018 WI 29, affirming an unpublished court of appeals decision, 2016AP173; case activity (including briefs)

Here’s the upshot: the majority opinion here means that, if you don’t have a concealed carry permit, you can’t have a handgun “concealed” in your car, unless it’s out of your reach. How will you know if it’s out of your reach? Simple: you’ll consider the location of the gun and yourself, the size of your vehicle, and your ability to reach the gun, and then you’ll “find guidance in [SCOW] precedent and common sense.” (¶31). While you’re considering all these things you should maybe also consider how, say, a police officer might consider them. Or a prosecutor. Or a jury. Because if they reach a different conclusion, well, that’s gonna be a problem.

State v. Gerrod R. Bell, 2018 WI 28, 4/10/18, affirming an unpublished court of appeals opinion, 2015AP2667-2668-CR; case activity (including links)

A defendant is presumed innocent until the State proves him guilty beyond a reasonable doubt. That’s what the Constitution says. Yet, in this child sexual assault case, the State cleverly told jurors that they could not acquit the defendant unless they believed his accusers had lied about the alleged assaults and unless they had evidence of the victims’ motive for lying.  Bell argued that this prosecution strategy impermissibly shifted the burden of proof to him. In a 3-1-1 opinion, SCOW approved the strategy and ruled against him.

State v. Johnny K. Pinder, 2017AP208-CR, certification granted 3/14/18; case activity (including briefs)

Issue (from certification)

If a search warrant issued under Wis. Stat. § 968.12 for the placement and use of a GPS tracking device on a motor vehicle is not executed within five days after the date of issuance per Wis. Stat. § 968.15(1) is the warrant void under § 968.15(2), even if the search was otherwise reasonably conducted?

State v. Shawn T. Wiskerchen, 2016AP1541-CR, petition for review of an unpublished court of appeals opinion granted 3/14/18; affirmed 1/4/19; case activity (including briefs).

Issue (composed by On Point):

In State v. Queever, 2016 WI App 87, 372 Wis. 2d 388, 887 N.W.2d 912, the court of appeals required a defendant to pay restitution for a security system that the victim bought before the date of the crime for which the defendant was convicted.

Must Queever be overturned because it is impossible for a crime committed on a certain date to cause losses on an earlier date? If not, what are the limits of Queever and of the definition of “a crime considered at sentencing” for restitution purposes? Can the definition include alleged prior-committed crimes?

State v. C.L.K., 2017AP1414, petition for review of an unpublished court of appeals opinion granted 3/14/18; case activity
Issues:

1. Where, during the grounds phase of a TPR trial, the circuit court errs by directing a verdict in favor of the State without giving the respondent an opportunity to present evidence, has the court committed structural error, or is the error subject to a harmless error analysis?

2. If the error in this case is not structural, then was it harmless?