On Point

State v. Juan J. Castillo, 2020AP983, 6/29/21, District 3 (not recommended for publication); case activity (including briefs)

Castillo was tried for the alleged sexual assault of his five-year-old cousin when he was sixteen. He wished to call an expert to testify about the factors that can affect the reliability of a child’s allegations of assault; the circuit court disallowed this testimony. The court of appeals upholds the circuit court’s ruling on that matter, concluding that the testimony didn’t “fit” the facts of this case. But the court does order a new trial, holding the circuit court should have granted the mistrial Castillo requested after the now-8-year-old alleged victim “blurted out” on the stand that Castillo had assaulted three other girls, and after his sister gave testimony suggesting he was incarcerated at the time of trial.

State v. Charles L. Neevel, 2021AP36, 7/1/21, District 4 (one-judge decision ineligible for publication) case activity (including briefs)

Neevel was arrested on suspicion of drunk driving. The officer read him the implied consent “informing the accused” form, and Neevel agreed to a blood draw. He moved to suppress, lost, and pleaded no contest to OWI. On appeal, he renews the argument he made in trial court: that the officer should instead have ordered a less intrusive test, such as a breath test. (The officer did, in reading the form, tell Neevel he could have an alternative in addition to the blood draw; Neevel’s contention is that he should have been offered a different test instead of the blood draw.)

State v. Michael James Brehm, 2020AP266, 6/29/21, District 1 (not recommended for publication); case activity

Brehm was arrested after a neighbor called 911 to report that he was firing a gun out his window into the air. Police recovered a gun and Brehm admitted to the shooting. He eventually pleaded guilty to being a felon in possession of a firearm.

State v. Jeffrey L. Moeser, 2019AP2184-CR, District 4, 6/24/21 (not recommended for publication); PfR granted 11/17/21; affirmed, 2022 WI 76; case activity (including briefs)

Over a dissenting vote, the court of appeals holds that, under the facts of this case, the affidavit in support of the warrant to draw Moeser’s blood was sworn to under oath by the officer and therefore the warrant was not defective.

State v. M.R.K., 2021AP141, District 1, 6/22/21 (one-judge decision; not recommended for publication); case activity

The Latin word grex means “flock,” “herd,” or “group,” and is the root of several English words. Gregarious originally meant “tending to live in a flock, herd, or community rather than alone” but has become a synonym for “sociable.” Egregious literally meant “out of the herd” in Latin — something that stands apart. Its first meaning in English was consequently “outstanding” or “remarkable for good quality,” but over time that changed to become “very bad and easily noticed” or “flagrant.”

Merriam-Webster’s Words at Play. See also Sentry Ins. v. Davis, 2001 WI App 203, ¶21 n.8, 247 Wis. 2d 501, 634 N.W.2d 553 (“Egregious” is “extraordinary in some bad way, glaring, flagrant[.]” (citation omitted)). In Wisconsin TPR cases, it means “missing a single court date.”

State v. Ronald Lee Gilbert, 2019AP2182, 6/22/21, District 1 (not recommended for publication); case activity (including briefs)

When last we saw this sex-trafficking case, the court of appeals had reversed the trial court’s denial of a Machner hearing on three claims. They were that Gilbert’s trial counsel was ineffective for failing to: challenge the admission of incorrect cell site location information (CSLI) testimony; demand discovery before trial; and impeach the State’s star witnesses with prior inconsistent statements. The discovery claim went away based on the subsequent Machner hearing testimony, but the court of appeals now again reverses the circuit court’s holdings on the other two, and orders a new trial.

Lange v. California, USSC No. 20-18, 141 S.Ct. 2011, 6/23/21, vacating People v. Lange

Lange was playing loud music with his car windows down and honking his horn when he happened past a California highway patrol officer. The officer turned on his lights to pull Lange over, but Lange was close to home: he continued 100 feet and pulled into his garage. The officer entered the garage and ultimately arrested Lange for misdemeanor drunk driving. The California Court of Appeal held that “hot pursuit” is always an exigency: that is, it excuses an officer from needing a warrant to enter the home, even when the officer is pursuing someone suspected of a misdemeanor. This is the position our state supreme court has adopted as well. State v. Ferguson, 2009 WI 50, ¶¶20-30, 317 Wis. 2d 586, 767 N.W.2d 187. The Supreme Court now rejects this per se rule, holding that the usual “totality of the circumstances” test must govern whether warrantless intrusion of the home is justified.

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.

Wood County DHS v. P.R., 2020AP947, 6/24/21, District 4 (one-judge decision; ineligible for publication); case activity

P.R. unsuccessfully challenges the sufficiency of the evidence for the CHIPS court’s decision to remove her daughter, K., from her home after K. alleged that P.R.’s spouse, M.R., sexually assaulted her.

Greer v. United States, USSC No. 19-8709, together with United States v. Gary, USSC No. 20-444, June 14. 2021; Scotusblog pages for Greer and Gary (including links to briefs and commentary)

These two federal felon-in-possession defendants were convicted before Rehaif v. United States, 588 U.S. ___ (2019), which held that, under 18 U.S.C. § 922(g), the government must prove that the defendant knew he was a felon at the time he possessed a firearm. Thus, they seek relief from their convictions under the onerous plain-error standard. The Court holds they have met their burden.