On Point

State v. Curtis L. Walker & State v. Omer Ninham, 2016AP1058 & 2016AP2098, Districts I & III, 3/6/18; case activity (including briefs): Walker; Ninham

Issue:

We certify these appeals to determine whether Wisconsin case law regarding life sentences without parole for juvenile murderers comports with recent pronouncements from the United States Supreme Court, and whether the sentencing courts in these cases adequately considered the mitigating effect of the defendants’ youth in accord with those Supreme Court pronouncements.

State v. Korry L. Ardell, 2017AP381-CR, District 1, 3/6/18 (not recommended for publication); case activity (including briefs)

Ardell was convicted of stalking in violation of § 940.32(2) for sending emails about N., a woman he had dated, to a former employer of N. (¶¶3-20). The court of appeals rejects his arguments that, under the plain language of the statute: 1) conduct or statements regarding N. but directed at a third party were irrelevant absent proof Ardell either intended such information to be passed on to the alleged victim or intended the third party to harass the alleged victim based on the information; and 2) the jury instructions failed to apprise the jury that the state had to prove that intent before they could convict him.

State v. Deandre D. Rogers, 2017AP670-CR, District 1, 3/6/18 (not recommended for publication); case activity (including briefs)

Evidence that Rogers was identified as a passenger in a vehicle reported stolen was properly admitted in his armed robbery trial because it provided “context” and “background” to one of the robbery charges for which he was on trial. And while the prosecutor made in improper argument in rebuttal closing because it wasn’t based on any evidence whatsoever, the argument wasn’t prejudicial.

State v. Bruce D. Johnson, 2017AP834-CR, District 3, 3/6/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Even if the sentencing court erroneously thought the sentence he was imposing on Johnson would be served in the jail rather than prison, that mistake doesn’t provide grounds for a sentence modification or resentencing.

State v. Roman D. Lovelace, 2017AP943-CR, District 1, 3/6/18 (not recommended for publication); case activity (including briefs)

During deliberations at Lovelace’s trial on a charge of burglary as party to a crime, the jury sent a note to the judge asking how burglary and party to a crime “relate” and whether they were “two separate charges or one in the same.” Without consulting the parties the court sent a written response telling the jury to review the written instructions they were given. (¶4). The judge shouldn’t have done that without consulting Lovelace’s attorney, but the error was harmless.

State v. Jamey Lamont Jackson, 2017AP968-CR, Distirct 1, 3/6/18 (not recommended for publication); case activity (including briefs)

Jackson argues his trial lawyer should have moved to suppress the identifications of him in a live lineup viewed by three eyewitnesses to a crime. He claims the identification procedure was impermissibly suggestive because, before the witnesses were interviewed about whether they could identify anyone in the lineup, one witness asked to view the person in position number five (Jackson) again and therefore suggested to the other witnesses who they should identify. (¶¶3, 11). The court of appeals disagrees.

State v. C.S.S., 2017AP1138, 2017AP1139, 2017AP1140, & 2017AP1141, District 1, 3/6/18 (one-judge decision; ineligible for publication); case activity

C.S.S. entered an admission to a TPR petition alleging her four children were in continuing need of protection and services. The court of appeals rejects her argument that she should be able to withdraw that admission because the judge misinformed her about the burden of proof at the disposition phase when it said the state had to prove by clear and convincing evidence that it would be in the children’s best interest to terminate her parental rights.

State v. B.D.H., 2017AP2390 & 2017AP2391, District 1, 3/6/18 (one-judge decision; ineligible for publication); case activity

At B.D.H.’s TPR trial her case worker testified that, in her opinion, B.D.H. wouldn’t be able to meet the conditions set by a CHIPS order for the return of her children within the statutory timeframe. The testimony was admissible under § 907.01, which allows lay opinion testimony if it is “(1) [r]ationally based on the perception of the witness[;] (2) [h]elpful to a clear understanding of the witness’s testimony or the determination of a fact in issue,” and “(3) [n]ot based on scientific, technical, or other specialized knowledge….”

State v. James C. Faustmann, 2017AP1932-CR, District 2, 3/7/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Under the test for lesser included offenses under § 939.66(1), disorderly conduct in violation of § 947.01(1) isn’t a lesser-included offense of unlawful use of a computerized communication system in violation of § 947.0125(2)(a).

State v. Sara L. Steppke, 2017AP1683, 4/2/18, District 4 (1-judge decision; ineligible for publication); case activity (including briefs)

Steppke was ordered to pay restitution for a security system her employer installed after she stole $3,000 worth of flea and tick product. The system cost over $16,000–or more than five times the value of what she took. Just a few months ago, a dissenting court of appeals judge lamented that the case law had gotten way, way ahead of the text of the restitution statute itself–giving rise to “entirely unjustifiable” results. One can hope this decision marks the beginning of a return to the plain language of the statute.