On Point

State v. Angelo M. Reynolds, 2016AP420-CR, District 4, 6/22/17 (one-judge decision; ineligible for publication); case activity (including briefs)

Police had sufficient probable cause to request that Reynolds provide a preliminary breath test under § 343.303.

State v. Benjamin Schneller, 2016AP2474, 6/22/17, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Benjamin Schneller was arrested for OWI and refused to submit to a blood draw, so the police got a warrant and took the blood anyway. He argues on appeal that the warrant only authorized the police to draw his blood, and that a separate warrant was required for them to test it.

State v. Heather L. Steinhardt, 2017 WI 62, 6/21/17, affirming a per curiam court of appeals opinion; case activity (including briefs)

Steinhardt led her 12 year old daughter to her bedroom so that her husband (the child’s step father) could have sex with her. In fact, Steinhardt sat on the bed while the assault occurred. The majority holds that leading the daughter to the assault and sitting on the bed during the assault are 2 different acts supporting 3 different crimes and punishments. Justice Abrahamson (joined by A.W. Bradley) calls Steinhardt’s crimes “revolting and detestable” but insists the “constitutional guarantees against double jeopardy protect us all, even Heather Steinhardt.” Dissent ¶47.

State v. Lamont Donnell Sholar, 2016AP987, 6/20/17, District 1 (not recommended for publication), petition for review granted 10/17/17, affirmed, 2018 WI 53; case activity (including briefs)

Sholar was charged with 5 counts of sex trafficking and 1 count of sexual assault.  At trial, defense counsel allowed “Exhibit 79”–a 181-page report containing the contents of Sholar’s cell phone, including 1,4000 text messages and photos of girls and women in suggestive poses, to go to the jury. The State concedes that defense counsel  performed deficiently, but argued that Sholar was prejudiced only with respect to the sexual assault charge, not the sex trafficking charges. The court of appeals agreed.

State v. Tyshun DeMichael Young, 2016AP657-CR, 6/20/17, District 1; (not recommended for publication); case activity (including briefs)

A jury convicted Young of attempted 1st-degree intentional homicide and 1st degree recklessly-endangering safety with use of a dangerous weapon. On appeal, he argued that the trial court should not have permitted the jury to hear evidence that his younger brother was killed exactly one year prior to the date he allegedly shot the victims in this case.

McWilliams v. Dunn, USSC No. 16-5295, 2017 WL 2621324 (June 19, 2017), reversing McWilliams v. Dunn, 634 Fed.Appx. 698 (11th Cir. 2015); Scotusblog page (including links to briefs and commentary)

A win for defendants in capital cases. Ake v. Oklahoma “clearly established” that when an indigent defendant demonstrates that his sanity at the time of the offense is to be a significant fact at trial, the State must provide him with access to a competent psychiatrist who will conduct an appropriate (1) examination and assist in (2) evaluation, (3) preparation, and (4) presentation of the defense. Ake did not specifically require the appointment of a defense team expert (as opposed to a neutral expert). It left that issue open, and with this decision SCOTUS leaves the issue open. It does hold, however, that simplest way for a state to satisfy Ake is to prove the defense with its own psychiatric expert.

Charlotte Jenkins v. Percy Hutton, USSC No. 16-1116, 2017 WL 2621321 (June 19, 2017) (per curiam), reversing Hutton v. Mitchell, 839 F.3d 486 (2016)( 6th Cir. 2016); Scotusblog page (including links to briefs and commentary)

Hutton filed a federal habeas petition challenging his death sentence on the grounds that the jury at the penalty phase of his trial hadn’t been sufficiently instructed to consider only the aggravating factors that had been proven during the guilt phase. But he didn’t object to the instructions at trial and didn’t raise instructional error on direct appeal, so his claim was procedurally defaulted. (Slip op. at 1-3). The Sixth Circuit reached the merits of his claim anyway, excusing the default because the jury hadn’t found the existence of aggravating factors and under Sawyer v. Whitley, 505 U.S. 333 (1992). The Sixth Circuit was wrong to do so, says the Supreme Court.

Virginia v. Dennis LeBlanc, USSC No. 16-1177, 2017 WL 2507375 (June 12, 2017), reversing LeBlanc v. Mathena, 841 F.3d 256 (4th Cir. 2016); Scotusblog page (including links to briefs and commentary)

Although this is a per curiam decision and it’s decided under the rubric of federal habeas review, the upshot of this opinion is that states won’t have to do too much to satisfy the requirement under Graham v. Florida, 560 U.S. 48, 75 (2010), that a state give a juvenile serving life without parole “some meaningful opportunity to obtain release based on a demonstrated maturity and rehabilitation.”

State v. Jesse T. Riemer, 2017 WI App 48; case activity (including briefs)

In what appears to be the first case of its kind, the court of appeals addresses the standard for reviewing the sentence imposed on a member of the Wisconsin National Guard after he was convicted of various offenses. Concluding it should apply the same standard as civilian criminal cases—erroneous exercise of discretion—it affirms the military judge’s sentence.

Marquette County v. Matthew J. Owens, 2016AP2176, District 4, 6/15/17 (one-judge decision; ineligible for publication); case activity (including briefs)

Owens argues that a police officer’s driving was so careless or unlawful that it required Owens to react in a way that created reasonable suspicion to stop him. Not so, says the court of appeals.