On Point: B. Opinions

State v. Christopher W. Yakich, 2022 WI 8, 2/16/22, affirming an unpublished court of appeals decision; case activity (including briefs)

When a defendant is found not guilty by reason of mental disease or defect (NGI) for more than one offense, the commitments for the offenses may be ordered to run consecutively.

The main issue in Waity v. Lemahieu, 2022 WI 6 (January 27, 2022), involves the legislature’s power to hire lawyers to deal with redistricting issues, but along the way a majority of the court addresses a matter of interest to all appellate and postconviction lawyers: the proper application of the standard for a circuit court to apply in deciding whether to issue a stay pending appeal. While seeking a stay in a criminal case is often a futile endeavor for the defense, what the court says here might be useful next time you consider doing so.

State v. Octavia W. Dodson, 2022 WI 5, 2018AP1476, 1/26/22, affirming an unpublished per curiam court of appeals decision; case activity (including briefs)

Dodson pleaded guilty to second-degree homicide. He’d shot and killed Freeman, who he (apparently erroneously) believed had earlier rear-ended his car. Dodson had pursued Freeman’s car and Freeman pulled over. Dodson said Freeman had run at him shouting racial epithets; that’s when Dodson shot him.

Waukesha County v. E.J.W., 2021 WI 85, 11/23/21, reversing an unpublished court of appeals’ opinion; case activity

This 4-3 “defense win” delivers a 1-2-3 punch! The decision:  (1) holds that a person undergoing commitment has the right to demand a jury 48 hours before the time set for his final hearing–even if the hearing is rescheduled; (2) reverses a recent, published court of appeals opinion to the contrary; and (3) resolves a split over the proper remedy for cases where the appellate court holds that the circuit court erred, but the underlying commitment order has expired.  (Answer: Simply reverse because the circuit court lacks competency to conduct remand proceedings on an expired commitment order.)

State v. Manuel Garcia, 2021 WI 76, 9/24/21, affirming a published decision of the court of appeals; case activity (including briefs)

As explained in our post on the published decision, the court of appeals held that a defendant’s voluntary statement obtained in violation of Miranda can’t be used in the state’s case-in-chief, even for impeachment if the defendant elects to testify.

State v. George Steven Burch, 2021 WI 68, on certification from the court of appeals, affirming the judgment of conviction; case activity (including briefs)

We said in our post on the court of appeals’ certification that this case presented novel and important issues about searches of cell phones and their data. So we anticipated a decision addressing the parameters of police searches of digital devices. But the majority doesn’t address those issues or decide whether Burch’s Fourth Amendment rights were violated. Instead, the majority holds that, regardless of the lawfulness of the search of Burch’s cell phone data, “there was no police misconduct to trigger application of the exclusionary rule.” (¶26). The majority’s approach bodes ill for the future of Fourth Amendment litigation and the freedom the Fourth Amendment is intended to protect—as illustrated by this case, given that a majority of the justices (one concurring, three dissenting) concludes the search of Burch’s phone data violated the Fourth Amendment.

State v. George Steven Burch, 2021 WI 68, 6/29/21, on certification from the court of appeals, affirming a judgment of conviction; case activity (including briefs)

The circuit court properly exercised its discretion in allowing the state to introduce evidence relating to Fitbit data without requiring expert testimony on the reliability of the device.

State v. Anthony M. Schmidt, 2021 WI 65, 6/18/21, on bypass from the court of appeals; case activity (including briefs)

“We also conclude that the child pornography surcharge applies to images of child pornography that form the basis of read-in charges of sexual exploitation of a child or possession of child pornography, so long as those images of child pornography are connected to and brought into relation with the convicted individual’s offense of sexual exploitation of a child or possession of child pornography.” (¶61). What does it mean for images to be “brought into relation with” an offense? What kind of inquiry is it? Factual? Legal? We don’t know, the partial dissent doesn’t know, and as it observes, the majority seems also not to know, as they refrain from addressing any facts but the ones before them. The most reliable SCOW imperative–upholding criminal sanctions–seems once again to have made the “law development” function an afterthought.

Cheyne Monroe v. Chad Chase, 2021 WI 66, 6/22/21, on certification from the court of appeals and reversing a circuit court judgment; case activity (including briefs)

One of the elements of a claim for malicious prosecution is that the baseless prior action must have terminated in favor of the party asserting malicious prosecution. The supreme court holds this element may be met even when the party accused of malicious prosecution voluntarily dismissed the allegedly baseless proceeding before it was decided on the merits.

State v. Alan M. Johnson, 2021 WI 61, 6/16/21, affirming in part and reversing in part a published decision of the court of appeals; case activity (including briefs)

In a case presenting a highly unusual set of facts, the supreme court agrees with the court of appeals that Johnson is entitled to a new trial because the circuit court erred in refusing to instruct the jury on perfect self-defense. However, the supreme court reverses the court of appeals’ decision as to the admissibility of other-acts evidence relating to the victim.