On Point

State v. Robert Daris Spencer, 2018AP942-CR, District 1, 3/9/21 (not recommended for publication), petition and cross petition for review both granted 8/13/21, affirmed in part, reversed in part, 2022 WI 56; case activity (including briefs)

Spencer challenges the trial court’s decision to dismiss a juror for cause just before deliberations began, but over a dissent the court of appeals holds his claims are forfeited or that any error was harmless. However, Spencer is entitled to a Machner hearing on his claim that trial counsel was ineffective for failing to object to hearsay evidence.

State v. Theophilous Ruffin, 2019AP1046-CR, District 1, 3/9/21 (not recommended for publication), state’s petition for review granted 9/17/21; reversed, 2022 WI 34; case activity (including briefs)

Ruffin raises three challenges to how the jury was instructed at his trial. Two are rejected in all respects, but one—regarding trial counsel’s decision to withdraw a self defense instruction—gets him a Machner hearing.

City of Cedarburg v. Katherine D. Young, 2020AP1848, District 2, 3/17/21 (one-judge decision; ineligible for publication); case activity (including briefs)

Young was prosecuted for an OWI 1st offense that did not arise out of a traffic stop or involve police collecting blood or breath samples or even testifying at trial. Can that be done? Sure, it can. And the evidence that was presented at trial was sufficient to convict her, too.

State v. Anthony James Jendusa, 2021 WI 24, affirming a court of appeals order denying interlocutory appeal; case activity (including briefs)

This litigation has been procedurally weird, as we’ve discussed before, but SCOW’s decision on the merits may turn out to be a momentous one for the future of ch. 980.

State v. Kenyon D. Grant, 2020AP785, 3/9/21, District 1 (not recommended for publication); case activity (including briefs)

McCoy v. Louisiana, 584 U.S. ___, 138 S. Ct. 1500 (2018) held that trial counsel cannot concede guilt over his client’s express objection. This would deny the client his 6th Amendment right to determine the objective of his defense and require an automatic new trial. Grant raised a McCoy claim in this case. It failed because trial counsel testified that Grant did not oppose his concession strategy and objected only after hearing the State’s evidence against him.

The moment Chapter 51 lawyers have been waiting for has . . . been postponed.  This term SCOW was set to decide whether appeals from expired recommitment orders are ever moot. See our post on Portage County v. E.R.R., 2019AP20133. After briefing and oral argument (in which Justice Anne Walsh Bradley did not participate), SCOW split 3-3 on the issue.  This means that the order dismissing E.R.R.’s appeal as moot stands. That’s the bad news.  Here’s the good news.

Jefferson County v. S.M.S., 2020AP814, 3/11/21, District 4 (1-judge opinion, ineligible for publication); case activity

It is blackletter law that the probable cause hearing for a Chapter 51 commitment must be held within a statutorily-prescribed time from the subject individual’s detention or the circuit court must dismiss the proceeding for lack of competency to adjudicate it. See §51.20(7)(a) and Dodge Cnty. v. Ryan E.M., 2002 WI App 71, ¶5, 252 Wis. 2d 490, 642 N.W.2d 592. In this case, the court of appeals held that the Ryan E.M. rule did not apply because the individual’s conduct (he was pro se) made it necessary for the circuit court to adjourn the probable cause hearing beyond the 72-hour period expired.

State v. Donald P. Coughlin, 2019AP1876-CR, District 4, 3/4/21 (not recommended for publication), state’s petition for review granted 9/14/21; case activity (including briefs)

In 2010 Coughlin was charged with over 20 counts of having sexual contact with three different children during various periods between 1989 and 1994. The court of appeals holds the evidence was insufficient to convict him of the counts involving  two of the children.

State v. Greg Douglas Griswold, 2020AP1598, District 4, 3/4/21 (one-judge decision; ineligible for publication); case activity (including briefs)

Griswold was convicted of violating § 26.12(5)(b) by starting a fire in an “extensive forest protection area” without a permit. The statute excepts fires started for warmth, and Griswold claimed that’s what he was doing. When evidence supports more than one reasonable inference, the reviewing court accepts the inference drawn by the trier of fact, see, e.g., State v. Poellinger, 153 Wis. 2d 493, 504, 451 N.W.2d 752 (1990), and under that standard the trial court reasonably rejected Griswold’s defense.

State v. Patrick A. Keller, 2021 WI App 22; case activity (including briefs)

Keller was convicted of causing mental harm, as a party to a crime, to his stepdaughter, who has autism. During his trial, the circuit court admitted statements made by non-testifying confidential reporters to Child Protective Services access workers. In a published decision, the court of appeals holds that these statements were not made for the primary purpose of gathering evidence to prosecute Keller, so the Confrontation Clause does not apply.