On Point

State v. Jude W. Giles, 2018AP1967-CR, District 3, 10/8/19 (one-judge decision; ineligible for publication); case activity (including briefs)

Jude’s sought to admit the results of his preliminary breath test results (.076) to lay a foundation for his expert’s opinion that alcohol was still being absorbed into his blood, making the state hygiene lab’s blood test result (.144) higher than his blood alcohol content at the time he was driving. (¶¶2-5). The circuit court properly disallowed the evidence because it runs smack dab into § 343.303 and State v. Fischer, 2010 WI 6, 322 Wis. 2d 265, 778 N.W.2d, both of which strictly prohibit the admission of PBT results.

This week SCOTUS will hear arguments in cases addressing whether States may abolish the insanity defense and whether the 14th Amendment fully incorporates the 6th Amendment’s guarantee of a unanimous of verdict. Visit SCOTUSblog to find out more

State v. Scott L. Nutting, 2017AP2049, 10/2/19, District 2, (not recommended for publication); case activity (including briefs)

At Nutting’s trial for sexual assault of a child, the State played parts of an audio recording of his custodial interview, but court and counsel neglected to make a record of them. Some would have been highly prejudicial to Nutting, so he requested a new trial. The court of appeals held that the postconviction court, the DA and defense counsel were able to  reconstruct the record sufficiently to give Nutting a meaningful appeal. It also denied Nutting’s claims for Brady violations.

State v. Keith H. Shoeder, 2019 WI App 60; case activity (including briefs)

So if you’re going to drink and drive your riding mower, stay on your lawn.

State v. Deangelo Tubbs, 2019AP644, 10/1/19, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

Police stopped Tubbs’s car, which lacked a front license plate. The officer who approached the vehicle saw a firearm in the car and immediately opened the door and told Tubbs to show his hands. (Tubbs had a concealed-carry permit.) On opening the door, the officer said, he smelled unburned marijuana and noted a digital scale on the floorboard. The officer then searched the car and found a jar containing weed.

Outagamie County DHHS v. R.P., 2019AP990 & 2019AP991, District 3, 10/1/19 (one-judge decision; ineligible for publication); case activity

The circuit court properly exercised its discretion in terminating R.P.’s parental rights, and in particular didn’t err by not considering a guardianship instead of termination.

State v. Michael K. Lorentz, 2018AP1515, 10/1/19 (one-judge decision; ineligible for publication); case activity (including briefs)

The state charged Lorentz with violating four injunctions. One count was brought under Wis. Stat. § 813.12(8)(a) (for violating a domestic abuse injunction regarding his ex-wife) and three under Wis. Stat. § 813.122(11) (for violating three child abuse injunctions–one for each of their three children). Each injunction required Lorentz to “avoid” the “residence” the mother and children shared.

State v. Vaylan G. Morris, 2018AP1694-CR, Distrct 1, 10/1/19 (not recommended for publication); case activity (including briefs)

O.M., an infant, died while c0-sleeping with Morris and her mom. Morris admitted that he may have rolled over onto her and pled guilty to 2nd degree recklessly endangering safety, party to a crime, At sentencing, the State said that O.M.’s cause of death could have been the synthetic marijuana that Morris had been smoking, even though the medical examiner attested that it  wasn’t.

State v. Orlando Davis, 2018AP2326-CR, 10/1/19, District 1, (1-judge opinion, ineligble for publication) case activity (including briefs)

Davis filed a Bangert motion alleging that (1) the trial court failed to advise him of the elements of the offense to which he pled guilty, and (2) he did not understand those elements. At the postconviction hearing, Davis and his trial lawyer testified about Davis’s understanding of the elements. The postconviction court found counsel more credible, and the court of appeals affirms.

Waupaca v. K.E.K., 2018Ap1887, District 4, 9/26/19 (not recommended for publication), petition for review granted 7/24/20, affirmed, 2021 WI 9; case activity

This opinion infuses uncertainty, if not confusion, into the law governing circuit court competency to decide a Chapter 51 recommitment case and the substantive legal standard that courts are to apply at the recommitment stage.