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On Point is a judicial analysis blog written by members of the Wisconsin State Public Defenders. It includes cases from the Wisconsin Court of Appeals, Supreme Court of Wisconsin, and the Supreme Court of the United States.
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Court of appeals rejects assorted challenges to drunk driving conviction
State v. Lonnie S. Sorenson, 2016AP1540-CR, 12/5/17, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)
Sorenson appeals jury-trial convictions for operating with a PAC and possession of drug paraphernalia. He was also found guilty of operating with a detectable amount of THC in his blood, but this was dismissed by operation of statute. See Wis. Stat. § 346.63(2)(am). He raises ineffective assistance, pretrial discovery, and confrontation issues, but the court rejects them all.
SCOW ducks First Amendment question
State v. Ginger Breitzman, 2017 WI 100, 12/1/17, affirming an unpublished court of appeals decision; case activity (including briefs)
Breitzman was convicted at trial of several counts of child abuse (for physical assaults) and neglect of her son, J.K. She was also convicted of a charge of disorderly conduct for an incident inside their home in which she called him a “fuck face,” a “retard,” and a “piece of shit.” The lead issue is whether her trial lawyer was ineffective for not trying to get the DC dismissed because her words were protected by the First Amendment. The court refuses to decide.
November 2017 publication list
On November 29, 2017, the court of appeals ordered the publication of the following criminal law related decisions: State v. A.L., 2017 WI App 72 (court may order reexamination of juvenile fount not likely to be competent to proceed) State v. Damien Markeith Divone Scott, 2017 WI App 74 (checkpoint stop justified by “special needs” […]
COA rejects ineffective of assistance of trial counsel claim due to appellate lawyer’s failure to develop argument on prejudice
State v. D.C., 2016AP2229-2230, District 1, 11/30/17 (1-judge opinion, ineligible for publication); case activity
During the grounds phase of her TPR proceeding, D.C.’s lawyer asked the trial court to: (1) instruct the jury that she was prohibited from having visitation with her children for a period of time, and (2) give curative instructions that it was impossible for her to perform a condition for return of her kids and to assume parental responsibility due to her incarceration. The court planned to rule on these requests just before trial, but, oops, that did not happen.
Quasi-anonymous tip, prolonged stop at at intersection gave reasonable suspicion for stop
State v. Xavier Grullon, 2016AP2404-CR, District 3, 11/28/17 (one-judge decision; ineligible for publication); case activity (including briefs)
A tip from a 911 caller together with an officer’s observations provided reasonable suspicion for a traffic stop, holds the court of appeals.
Odor of marijuana is probable cause for search; text messages admissible as “panorama” or “other acts” evidence
State v. Willie Brownlee, Jr., 2015AP2319-CR, 11/21/17, District 1, (not recommended for publication); case activity (including briefs)
Two officers stopped Brownlee after he drove his rental car through a red light. One officer approached the driver’s side, the other approached the passenger side occupied by Brownlee’s friend. Both smelled the distinct odor of burnt marijuana. They ordered Brownlee and his friend out of the car and searched it. Guess what they found in the glove compartment?
Is Machner unconstitutional?
At least three justices of the Supreme Court of the United states think so.
Felony defendants far less successful in SCOW than in other state supreme courts
Today’s edition of SCOWstats follows up on a forthcoming Vanderbilt Law Review article, State Criminal Appeals Revealed, which used a new dataset from the Bureau of Justice Statistics and the National Center on State Courts to examine state supreme court decisions in felony appeals. The article did not include Wisconsin cases, so SCOWstats supplies the […]
Good faith exception to exclusionary rule applies to pre-Rodriquez dog sniff
State v. James R. Stib, 2017AP3-CR, District 2, 11/15/17 (not recommended for publication); case activity (including briefs)
Stib argues his traffic stop was unlawfully prolonged to conduct a dog sniff under Rodriguez v. United States, 135 S. Ct. 1609 (2015). Assuming Stib is correct, suppression of the evidence seized after the dog alerted is inappropriate under the good-faith exception to the exclusionary rule because the dog sniff was conducted in objectively reasonable reliance on then-existing precedent, namely, State v. Arias, 2008 WI 84, 311 Wis. 2d 358, 752 N.W.2d 748.
SCOW to decide whether courts may impose criminal penalty where suspect refuses a warrantless blood draw
State v. Patrick H. Dalton, 2016AP2483-CR, petition for review 0f an unpublished court of appeals opinion granted 11/13/17; case activity (including briefs)
Issues:
1. Under Missouri v. McNeely and Birchfield v. North Dakota, may a circuit court impose a harsher criminal punishment because a defendant exercised his constitutional right to refuse a warrantless blood draw?
2. Whether Dalton was denied the effective assistance of counsel where his attorney failed to move to suppress blood evidence on grounds that police lacked exigent circumstances to forcibly draw his blood without a warrant?
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On Point provides information (not legal advice) about important developments in the law. Please note that this information may not be up to date. Viewing this blog does not create an attorney-client relationship with the Wisconsin State Public Defender. Readers should consult an attorney for their legal needs.