On Point

City of Berlin v. Ricardo A. Adame, 2017AP2130, District 2, 4/18/18 (one-judge decision; ineligible for publication); case activity (including briefs)

There was a sufficient chain of custody evidence to conclude that the blood-alcohol test results offered into evidence by the state related to blood samples taken from Adame.

State v. Robert P. Vesper, 2018 WI App 31; case activity (including briefs)

Vesper complains that when he was sentenced for his 7th OWI offense the judge didn’t give a separate explanation for why it was imposing a fine in addition to prison time. Over a dissent, the court of appeals concludes the judge said enough to satisfy the (not at all exacting) standard of review for exercise of sentencing discretion. The court also rejects Vesper’s claim that the judge didn’t assess his ability to pay the fine.

State v. Wayne A. Johnson, 2017AP729-CR, District 3, 4/25/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Johnson failed to satisfy his burden for getting an in camera review of counseling records under State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), and State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, because he didn’t prove the records were likely to provide information over and above information that was available to him from another source—Johnson’s girlfriend, who was the complaining witness’s mother.

On April 25, 2018, the court of appeals ordered publication of the following criminal law related decisions: State v. Dorian M. Torres, 2018 WI App 23 (warrantless entry and search held lawful because it was authorized by third-party consent) State v. Corey R. Fugere, 2018 WI App 24 (defendant pleading NGI doesn’t need to know […]

Chippewa County v. M.M., 2017AP1325, 5/1/18, District 3, (1-judge opinion, ineligible for publication); case activity

You don’t see this very often. A jury found M.M. mentally ill, a proper subject for treatment, and dangerous under §51.20(1)(a)2.c based on testimony by not 1, not 2, but 3 doctors–all of whom said that M.M.’s paranoia and conduct would cause others to feel fearful and threatened and possibly assault him in an effort to protect themselves. This idea that M.M. was “indirectly” dangerous to himself did not wash with the court of appeals. It reversed and also rejected the County’s claim that M.M.’s appeal from this 6-month commitment was moot.

State v. Larry L. Garner, 2016AP2201-CR, 4/17/18, District 1 (not recommended for publication); case activity (including briefs)

The State charged Garner and 3 other co-defendants with 2 counts of armed robbery use of force, PTAC, and felony murder, PTAC. The trial court ordered separate trials. A mistrial occurred due to juror misconduct, so the court held a second trial where the jury found Garner guilty on all 3 counts. On appeal the lead issue was whether the circuit court violated Garner’s confrontation rights by allowing the State to present his co-defendant’s testimony from the 1st trial at his 2nd trial. The answer, according to the court of appeals, is “no.” Garner’s challenges to the State’s amended information and to his sentence also failed.

State v. S.S., 2017AP2097 & 2098, 4/17/18, District 1 (one judge decision; ineligible for publication); case activity

S.S. appeals the termination of her parental rights to her two boys. She argues the trial court misapplied the six statutory factors in deciding termination was in the children’s best interest, and also that her counsel was ineffective in various respects. The court of appeals rejects all her arguments.

State v. Jacqueline M. Datka, 2017AP1886, 4/18/18, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Datka challenges the officer’s decision to ask for a preliminary breath test after she was stopped on suspicion of OWI.

State v. William H. Craig, 2017AP651-CR, 4/17/18, District 3 (not recommended for publication); case activity (including briefs)

Criminal defendants have a broad right to pretrial discovery under §971.23(1), but that right is tempered by  §971.23(6), which authorizes the circuit court to enter protective orders for good cause. The court is not required to hold an evidentiary hearing before granting a motion for protective order. But if it denies a hearing, it must explain its rationale. The circuit court did not do that here, so the court of appeals reversed and remanded this case for further proceedings.

State v. Anthony Jones, 2018 WI 44, 5/4/2018, affirming an unpublished summary order, 2015AP2665, case activity

We noted in our post on the grant of Jones’s PFR that at the time there were “exactly zero Wisconsin appellate cases holding expert testimony inadmissible under Daubert.” That’s still true.