On Point

Cle A. Gray, Jr. v. Robert Humphries, 2016AP584-CR, 4/6/17, District 4 (one-judge decision; ineligible for publication); case activity (including state’s brief)

Gray sought to prevent the Department of Corrections from taking certain money from his prison accounts to pay the costs and restitution Gray had been ordered to pay, but the court of appeals holds DOC’s collection actions were valid under the judgment of conviction and relevant statutes.

State v. Stanley J. Maday, Jr., 2017 WI 28, 4/5/17, reversing a per curiam court of appeals decision, 2015AP366-CR; case activity (including briefs)

This “he said, she said” case resulted in a verdict finding Maday guilty of child sexual assault.  Catherine Gainey, the social worker who conducted a “cognitive graphic interview” of K.L., the alleged victim, testified at trial that there “was no indication” that K.L. had been coached or was being dishonest. Maday claimed ineffective assistance of counsel because his lawyer did not object to this Haseltine evidence. SCOW, voting 5-1-2, nixed that claim. The majority, written by Gableman, says Haseltine does not bar “observations of indications of coaching and deceit” that a social worker makes during the course of a forensic interview.  It only bars an expert’s subjective opinions about a child’s truthfulness. So expect prosecutors to invoke the magic word “indications” early and often. If you feel like shouting “mayday! mayday!” don’t. The majority may have slammed a door on certain objections to Haseltine evidence, but it has unwittingly flung open a window for defense lawyers.

State v. Glenn T. Zamzow, 2017 WI 29, 4/6/17, affirming a published court of appeals decision; case activity (including briefs)

“The Sixth Amendment guarantees that a defendant whose guilt or innocence is at stake at trial may employ the ‘greatest legal engine ever invented for the discovery of truth.’ …. But the Sixth Amendment does not mandate that statements considered at a suppression hearing face the crucible of cross-examination. Nor does the Due Process Clause demand this. Accordingly, we conclude that the circuit court did not deny Zamzow his rights under the Sixth and Fourteenth Amendments to the Constitution by relying on an audio recording of a deceased officer’s statement at the suppression hearing.” (¶31).

County of Dodge v. Alexis N. Unser, 2016AP2172, 4/6/17, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Unser wasn’t unlawfully moved outside the “vicinity” of the traffic stop when the officer transported her six miles to conduct field sobriety tests.

State v. Terrence L. Perkins, 2016AP1427-CR,4/4/17, District 3, (1-judge opinion, ineligible for publication); case activity (including briefs)

At Perkins’ suppression hearing, Officer Stetzer testified that he saw Perkins drive through a stop sign and part way through a cross walk into the middle of an intersection where he then backed up to allow a car to pass before proceeding. The squad car video did not capture Perkins’ stop sign violation; it only recorded him backing up. Perkins argued that the position of the squad car would have prevented the officer from seeing whether he complied with the stop sign before proceeding into the intersection. He thus argued that Stetzer lacked reasonable suspicion to stop him.

State v. David L. Johnson, 2015AP2605-CR, 4/4/17, District 1 (not recommended for publication); case activity (including briefs)

A jury found Johnson guilty of aggravated battery and false imprisonment but acquitted him of sexual assault and strangulation. The court imposed 2 consecutive 6-year sentences.  Johnson appealed and argued that the postconviction court erred in denying his claim for ineffective assistance of trial counsel without a hearing, imposing a DNA surcharge in violation of the ex post facto clause, and in denying resentencing. 

Barron County DHHS v. M. B.-T., 2016AP1381/1382/1383, 3/31/17, District 3 (one-judge decision; ineligible for publication); case activity

M. B.-T. was personally served with a TPR petition and summons and appeared as directed at the initial appearance on the petition. He didn’t enter a plea at the hearing because he told the circuit court he wanted have a lawyer appointed. He also agreed on the record to return for an adjourned initial appearance in about 3 weeks. He didn’t return, though, and no lawyer appeared for him, either, so the court granted the County’s motion for a default judgment. (¶¶2-5). The court of appeals rejects his challenges to the default judgment.

State v. Jeffrey P. Lepsch, 2017 WI 27, 3/31/17, affirming a per curiam court of appeals opinion, case activity (including briefs)

This appeal primarily concerns whether trial counsel was ineffective for failing to: (a) object to the seating of biased jurors, and (b) ensure that the trial court properly administered the oath to the venire panel in Lepsch’s presence.  SCOW holds that none of Lepsch’s jurors were biased, and the venire panel was properly sworn. Thus, no ineffective assistance of counsel occurred. Justice Abrahamson’s concurrence acknowledges Wisconsin law governing juror bias appears inconsistent both internally and with federal case law and strives to harmonize it for the bench and the bar.

State v. Daniel G. Scheidell, 2015AP1598-CR, 3/29/17, District 2 (not recommended for publication); case activity (including briefs)

Congrats to the Remington Center for a winning a new trial in the interests of justice based on newly-discovered, 3rd-party perpetrator evidence 19 years after Scheidell was convicted of 1st degree sexual assault and armed robbery. Even better, their win was affirmed on appeal!

Kenosha County DHS v. C.D.K., 2015AP2179, 3/30/17, District 2 (one-judge decision; ineligible for publication); case activity

C.D.K. entered a plea to grounds for termination of her parental rights, and eventually, they were terminated. She claims on appeal that her trial counsel failed to advise her competently about the decision to admit grounds, and that she did not understand certain information, rendering her admission not knowing, intelligent and voluntary.