On Point: 45. WI Supreme Court

State & T.A.J. v. Alan S. Johnson, 2023 WI 39, 05/16/2023, reversing a published court of appeals decision, case activity (including briefs)

As the dissent aptly describes it, “[t]his case has traveled a long and winding road to this point, and Johnson’s trial has not yet begun.” (Opinion, ¶110, Bradley, A.W., dissenting). As discussed in On Point’s prior posts, here and here, this case was originally about whether “Marsy’s Law” gave crime victims standing to intervene in Shiffra–Green litigation. After the court appeals held that it did and after Johnson petitioned for review, the supreme court took up the case. Then, in a footnote in its response brief, the state asserted that, “Shiffra is incorrect to the extent that it holds that Ritchie applies to records outside the State’s possession.” (Op., ¶110, Bradley, A.W., dissenting). Thereafter, the supreme court ordered supplemental briefing on a new question: “Should the court overrule State v. Shiffra…?” (Op., ¶4). And, now the majority has done just that.

Wisconsin Justice Initiative, Inc. v. Wisconsin Elections Commission, 2023 WI 38, 5/16/23, on certification from the court of appeals; case activity (including briefs)

In a 6-1 opinion, SCOW held that the ballot question for Marsy’s law complied with Wis. Const. art. XII §1. That’s the old news. The new and BIG news is Justice Dallet’s concurrence. It is essential reading for lawyers arguing constitutional or statutory construction issues to SCOW. She, Karofsky, and A.W. Bradley say that they are not bound by “methodologies” for interpreting constitutions and statutes–specifically “originalism” or strict adherence to the “plain language”–that SCOW has used in some past cases. If Justice-elect Protasiewicz agrees, we may soon see some defense-friendly constructions of our constitution and statutes.

State v. Donte Quintell McBride, 2021AP311-CR, state’s petition to review an unpublished court of appeals decision granted, 4/18/23; affirmed, 2023 WI 68 case activity (including briefs, PFR, and response to PFR)

Issues (from the State’s PFR):

1. When reviewing a motion to suppress, what is the proper application of the “clearly erroneous” standard of review?

2. Was the seizure and subsequent search of McBride constitutional where police observed two people sitting in an unilluminated SUV, which appeared to obstruct traffic, late at night in a high crime area, and when McBride made furtive movements in response to the officer’s spotlight?

State of Wisconsin ex rel. Antonio S. Davis v. Circuit Court for Dane County and Honorable Ellen K. Berz, 2022AP1999-W, PFR granted 03/31/2023;  COA decision affirmed, 2024 WI 14, case activity (including briefs, petition for review, and state’s response)

Davis was arrested and charged with two misdemeanors in Dane County. He applied for an attorney through the State Public Defender a day after his arrest, but made his initial appearance before a court commissioner without appointed trial counsel. That same day, Davis’ case was assigned to Judge Ellen K. Berz. Counsel was appointed to represent Davis 65 days later, and after consultation with his newly appointed counsel, Davis filed a request for substitution. Judge Berz denied the request as “untimely.” The supreme court will now review whether the delayed appointment of counsel provides an exception to the strict adherence to Wis. Stat. § 971.20(4)’s deadline to file a request for substitution.

State v. Robert K. Nietzold, Sr., 2023 WI 22, 03/28/2023, reversing an unpublished court of appeals opinion; case activity (including briefs)

Pursuant to the plea agreement, the state agreed to “not recommend a specific term of imprisonment.” At sentencing, the state argued for 27 years imprisonment, consisting of 12 years initial confinement and 15 years extended supervision. Nietzold objected, was denied a postconviction motion hearing in the circuit court, but the court of appeals reversed and ordered resentencing before a different judge. Now, a unanimous Wisconsin Supreme Court holds that the state “cured” its undisputed material and substantial breach because the prosecutor “acknowledged the blunder and modified the State’s recommendation to an undefined prison term-exactly what Nietzold agreed to.” (Opinion, ¶14).

State v. Tomas Jaymitchell Hoyle, 2023 WI 24, 3/31/22, reversing an unpublished court of appeals opinion; case activity (including briefs)

This split decision is important for two reasons. First, it authorizes the State to penalize the defendant for exercising his 5th Amendment right to remain silent at trial. Second, it foreshadows how Justice Hagedorn will likely rule in cases involving a broad range of criminal and civil constitutional rights that were established after the framers wrote the United State Constitution.

State v. Morris V. Seaton, 2021AP1399-CR, certification granted 3/24/23;  remanded, 2023 WI 69;District 2; case activity (including briefs) case activity (including briefs)

Question presented (from the court of appeals’ certification):

In light of the 2014 amendment of WIS. STAT. § 904.04(2)(b) (2019-20), codifying and expanding the “greater latitude” rule and the Wisconsin Supreme Court’s decision in State v. Dorsey, 2018 WI 10, ¶¶23-25, 379 Wis. 2d 386, 906 N.W.2d 158, interpreting and applying that amendment, are State v. Alsteen, 108 Wis. 2d 723, 324 N.W.2d 426 (1982), and State v. Cofield, 2000 WI App 196, 238 Wis. 2d 467, 618 N.W.2d 214, still controlling law as they relate to the admissibility of prior nonconsensual sexual wrongs in cases involving an adult victim of an alleged sexual assault where consent is the primary issue?

State v. Larry L. Jackson, 2023 WI 3, 01/20/23, affirming in part, reversing in part, and remanding a per curiam court of appeals decision; case activity (including briefs)

A unanimous supreme court holds that Jackson is entitled to an evidentiary hearing under State v. Machner on one of his three claims of ineffective assistance of counsel.

State v. Quaheem O. Moore, 2021AP938-CR, petition for review of an unpublished court of appeals decision granted 12/21/22; reversed 2023 WI 50; case activity (including PFR, Response, and briefs)

Issues presented (from State’s PFR):

1. Did the court of appeals correctly read State v. Secrist, 224 Wis. 2d 201, 589 N.W.2d 387 (1999), to establish a standard of evidence for search and arrest based on the odor of a controlled substance that is more demanding than the constitutional standard of probable cause?

2. Did police have probable cause to search Moore incident to arrest under the totality of the circumstances, which included a “strong” odor of raw marijuana coming from the vehicle of which Moore was the sole occupant?

State v. Eric J. Debrow, 2021AP1732-CR, petition for review of an unpublished COA opinion granted 12/15/22, reversed, 2023 WI 54; case activity (including PFR, Response, and COA briefs)

Issue presented (from the State’s petition):

Did the court of appeals apply the proper legal standard to its review of the circuit court’s decision to deny Debrow’s motion for a mistrial when it considered the adequacy of the curative instruction given by the circuit court and, if not, did the circuit court properly exercise its discretion in denying the motion for a mistrial?