On Point

On June 30, 2021, the court of appeals ordered the publication of the following criminal law related decision: State v. Alijouwon T. Watkins, 2021 WI App 37 (events that happen after trial can’t be basis for newly-discovered evidence claim)

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.

State v. Westley D. Whitaker, 2020AP29-CR, petition for review of a published decision of the court of appeals granted 6/16/21; case activity (including briefs)

Issues Presented (from the PFR and supreme court order granting review)

1. Does it violate the First and Fourteenth Amendments and Article I, Section 18 of the Wisconsin Constitution to consider a defendant’s religious identity and impose a sentence intended to deter crime solely within his religious community?
2. If a sentencing court may consider a defendant’s religious association to deter other members of a religious community, does the “reliable nexus” test of State v. Fuerst, 181 Wis. 2d 903, 512 N.W.2d 243 (Ct. App. 1994), and State v. J.E.B., 161 Wis. 2d 655, 469 N.W.2d 192 (Ct. App. 1991), require congruity between the offense and the activity protected by the First Amendment?
3. Does the sentencing factor/objective of “protection of the public” permit the sentencing court to increase the sentence imposed on the defendant to send a message to an identified set of third parties that they should alter their behavior in the future, apart from generally being deterred from committing offenses like those committed by the defendant? (Added by the supreme court.)

State v. Christopher W. Yakich, 2019AP1832-CR & 2019AP1833-CR, petition for review of an unpublished decision of the court of appeals granted 6/16/21; case activity (including briefs)

Issue Presented (from the PFR):

When a defendant has been found not guilty by reason of mental disease or defect in two separate cases and is subject to two separate commitment orders, does the circuit court have authority to run the terms of commitment consecutive to one another?

Outagamie County v. X.Z.B., 2020AP2058, 6/22/2121, District 3, (1 judge opinion, ineligible for publication); case activity

This case involves the recommitment of a protectively placed person based on §51.20(1)(a)2.c., the 3rd standard of dangerousness.  The court of appeals reversed the circuit courts’ recommitment order for insufficient evidence. And, for the second time in one week, it held that when circuit courts fail to make the requisite factual findings for a commitment that has expired, the remedy is reversal not remand for further fact-finding.

State v. T.G., 2021AP351, 6/23/21, District 2 (1-judge opinion, ineligible for publication); case activity

The State filed a delinquency petition against T.G., then 15, for stealing a car and causing an accident that left two passengers seriously injured. The State also petitioned for waiver of jurisdiction. Reviewing the petition de novo, the court of appeals held that Count 1 had “prosecutive merit.” Further, the circuit court did not erroneously exercise its discretion in waiving T.G. into adult court.

Eau Claire County v. J.M.P., 2020AP2014-FT, 6/22/21, District 3; (1-judge opinion, ineligble for publication); case activity

A month ago District 3 reversed the recommitment order in this case because the circuit court had violated Langlade County v. D.J.W. That is, the circuit court ordered a recommitment without making specific factual findings tied to one or more the standards of dangerousness in §51.20(1)(a)2. Thus, the court of appeals remanded the case and ordered the required factfinding. Upon reconsideration, the court of appeals has issued a new decision holding that the correct remedy is outright reversal.

State v. Adam W. Vice, 2021 WI 63, 6/16/21, reversing a published decision of the court of appeals; case activity (including briefs)

The circuit court and court of appeals held Vice’s post-polygraph confession was involuntary because the police officers interrogating him referred multiple times to Vice’s polygraph results (he failed), told him that proved he remembered the crime despite his denials, but never told him the polygraph results were inadmissible as evidence. As we predicted, the state petitioned for review, the supreme court took the case, and, in an opinion essentially devoid of law development, holds Vice’s confession wasn’t coerced.

State v. Joseph G. Green, 2020AP298-CR, petition for review granted 6/16/21, case activity (including briefs)

Issue (from the State’s petition):

Does a circuit court have authority to order tolling of the 12-month statutory time limit for bringing an incompetent criminal defendant to trial competency?