On Point

State v. Malcolm J. Sanders, 2019 WI App 52; case activity (including briefs)

Sanders is black, and the DA struck the only black jurors from serving on his case because, even though they said they could be fair, they had had prior bad experiences with police, including being the subjects of racial profiling. Judges Gundrum and Neubauer held that the DA did not discriminate. But in another “must read” dissent, Judge Reilly said:

It is a perversion of justice to accept the reasoning that because we have unfairly treated blacks (or any class of people), we can then use our wrongful acts to prevent blacks from serving on juries. Utilizing our unfair treatment of blacks as a valid “race neutral” reason to keep blacks off juries is itself discrimination. Dissent, ¶16.

Ozaukee County v. R. C.J. Y., 2019AP297, 8/7/19, District 1 (1-judge opinion, ineligible for publication); case activity

Many Chapter 51 cases are resolved through 90-settlement agreements entered just before or just after the circuit court holds a probable cause hearing. These settlement agreements are governed by §51.20(8)(bg),(bm) and (br).

State v. Darius Kavonta Smith, 2019AP642 & 643-CR, 8/6/19, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs)

During closing arguments, the DA made a sarcastic, belittling reference to public defenders who line up empty chairs to emphasize that the State neglected to call witnesses to prove guilt beyond a reasonable doubt. The DA also commented on witnesses whom Smith had not called. Defense counsel moved for a mistrial because the DA’s belittling of public defenders stigmatized their clients, and his comment about her failure to call witnesses improperly shifted the burden to the defense. The circuit court granted  the mistrial.

State v. Robert E. Hammersley, 2018AP1022, District 3, 7/30/19 (one-judge decision; ineligible for publication); case activity (including appellant’s brief)

Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), doesn’t provide a basis to void the revocation of Hammersley’s driver’s license back in 1995 for refusing a blood alcohol test after his OWI arrest.

State v. Medford B. Matthews, III, 2019 WI App 44; case activity (including briefs) It’s a crime in Wisconsin to have sex with a person under 18. Specifically, it’s a misdemeanor, if that person is 16 or older—like the 17-and-a-half-year-old alleged victim here. But, it’s tough to have sex without (1) being in a private […]

State v. Adam Blaine Anderson, 2018AP718, 7/23/19, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

A sheriff’s deputy saw Anderson, who had an outstanding warrant, in the yard of an a acquaintance with whom he was staying. Specifically, the sheriff saw him by means of a live surveillance video; they’d installed a camera on a telephone pole across the street as part of an investigation into meth dealing. He alerted other officers, who showed up at the residence and eventually, after a chase, arrested Anderson.

State v. James A. Culver, 2018AP799-CR, District 4, 7/25/19 (not recommended for publication); case activity (including briefs)

Back in 2008 Culver was convicted and sentenced for OWI, fifth offense, with a minor in the car, which doubles the minimum and maximum penalties, § 346.65(2)(f). Now that his extended supervision (ES) is being revoked he challenges the length of the ES term originally imposed. He argues the presence of a minor is a penalty enhancer, which lengthens the term of initial confinement but not the term of ES, see § 973.01(2)(c)1. and State v. Volk, 2002 WI App 274, 258 Wis. 2d 584, 654 N.W.2d 24. No, says the court of appeals, under State v. Jackson, 2004 WI 29, 270 Wis. 2d 113, 676 NW.2d 872, OWI with a minor passenger is an unclassified felony, so the term of ES is increased, too.

State v. Lonnie P. Ayotte, Jr., 2018AP839-CR, 7/25/19, District 4 (one-judge decision; ineligible for publication); case activity (including briefs) Like Jessica Randall, Ayotte consented to a blood draw after his OWI arrest but then asserted his right to privacy in his blood and told authorities they couldn’t test his blood for alcohol without a warrant. […]

State v. Johnalee A. Kawalec, 2017AP798, 7/24/19, District 2 (not recommended for publication); case activity (including briefs)

We’ve questioned the blanket claim that a lawyer can’t be ineffective for failing to argue an unsettled proposition of law. Here we have the sort of case for which the general rule makes some sense. Kawalec was charged with theft by a bailee under Wis. Stat. § 943.20(1)(b). She was the holder of a joint bank account with the alleged victim; the victim had given her a power of attorney but the relationship fell apart and she was accused of having used some of the funds for her own benefit, rather than abiding by the prohibition on self-dealing inherent in the POA.

City of Milwaukee v. David B. Munzinger, 2018AP2186, 7/23/2019, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

Munzinger fought his OWI citation in the municipal court and lost; he filed an appeal to the circuit court pursuant to Wis. Stat. § 800.14. To do this, his counsel filed a form  in the circuit court captioned “Notice of Appeal” (probably this one, provided by the municipal court). He also emailed the city attorney alerting him to the appeal and apparently spoke to him about it. But, his email didn’t include a copy of the “Notice of Appeal” form. The city moved to dismiss and the circuit court granted the motion.