On Point

State v. Michael A. Durham, 2015AP1978-CR, 4/12/2016, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Police were dispatched in response to a 6:30 p.m. phone call from a neighbor about unintelligible yelling and “banging” that shook the walls of Durham’s residence. (¶2). After knocking and ringing the doorbell and receiving no response, police simply entered the house, guns drawn, and proceeded toward the stairs, where they encountered Durham. (¶¶3-5). The officers ordered Durham to show his hands, he didn’t, and they tasered him. (¶6). He was charged with resisting an officer, unsuccessfully moved to suppress evidence obtained via the warrantless search of his home, and was convicted at trial. (¶1). The court of appeals here reverses the conviction because the suppression motion should have been granted.

Voces De La Frontera, Inc. v. David A. Clarke, Jr., 2016 WI App 39, petition for review granted 6/15/16, reversed, 2017 WI 16; case activity (including briefs)

Voces De La Frontera submitted an open records request for all immigration detainer forms that Sheriff David Clarke received during a 15-month period. Clarke supplied the forms but redacted 5 categories of information from them, including the person’s nationality and immigration status. So Voces sought, and received, a circuit court writ of mandamus ordering Clarke to produce the records. The court of appeals here affirms that writ.

Outagamie County v. Adam B., 2015AP718, 4/12/16, District 3 (1-judge opinion; ineligible for publication); case activity (including briefs)

The circuit court neglected to specify which of the 5 statutory “dangerousness” standards in §51.20(1)(a)2.a-e supported the Ch. 51 commitment of Adam B. But that did not trouble the court of appeals. Given the “de novo” standard of review, it could (and did) decide for itself which statutory “dangerousness” test the facts satisfied.

State v. Luis Calderon-Encarnacion, Jr., 2014AP2252-CR, 04/12/2016 (not recommended for publication); case activity (including briefs)

Calderon was found guilty at trial of shooting up the house of his child’s mother. The evidence against him included the fact that he was pulled over 20 minutes after the shooting in a vehicle matching an eyewitness description of the shooter’s, with a silver-and-black revolver containing five spent casings concealed in the fuse panel.

State v. Tony Phillip Rogers, 2015AP921-CR, 4/12/16, District 1 (not recommended for publication); case activity (including briefs)

Though the complainant in Rogers’s child sexual assault prosecution made statements to her mother about “hearing voices” and needing mental health assistance, trial counsel was not deficient for failing to move for an in camera review of her treatment records because he could not have made the materiality showing needed under State v. Shiffra, 175 Wis. 2d 600, 608-09, 499 N.W.2d 719 (Ct. App. 1993), and State v. Green, 2002 WI 68, ¶¶32-34, 253 Wis. 2d 356, 646 N.W.2d 298.

State v. L.N.S., 2015AP1617, District 1, 4/12/16 (one-judge decision; ineligible for publication); case activity

The evidence regarding the mother’s interaction with her daughter over the daughter’s entire lifetime was sufficient to support the jury’s determination that the mother failed to assume parental responsibility.

State v. A.M.B., 2015AP1618, District 1, 4/12/16 (one-judge decision; ineligible for publication); case activity

Andy was incarcerated when his daughter Catie was born and he remained in custody throughout the subsequent CHIPS and TPR proceedings. He ultimately admitted to the continuing CHIPS ground for termination of his parental rights, but now claims his admission was invalid because he was not aware that, under Kenosha County Department of Human Services v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845, incarceration alone cannot be grounds to terminate parental rights. The court of appeals finds no flaws in his admission.

State v. J.J., 2016AP194 & 2016AP195, 4/12/2016, District 1 (one-judge decision; ineligible for publication); case activity

J.J., the father, appeals the termination of his rights to his two children, J.J. and A.J., challenging not the finding of unfitness but only the court’s determination that termination was in the best interest of each child.

Review of a published court of appeals decision; case activity (including briefs)

Issue (from petition for review):

Is a defendant deprived of his constitutional right against self-incrimination and his rights guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article I, § 8 of the Wisconsin Constitution by the admission at trial in the state’s case-in chief of his unwarned custodial statements made in response to law enforcement’s asking for a statement?

State v. Jimmie Lee Smith, 2016 WI 23, 4/7/16, reversing a published court of appeals decision, majority opinion by Roggensack, concurrence by Ziegler, dissent by Abrahamson (joined by A.W. Bradley); case activity (including briefs)

You can’t accuse the majority of mere error correction in this decision. Although the State never asked SCOW to rewrite the “clearly erroneous” standard of review and nobody briefed or orally argued the issue (see Ziegler’s concurrence and Abrahamson’s dissent), the majority seized the opportunity to make a tough standard even tougher. Unless SCOTUS steps in, it’s going to be virtually impossible to  challenge circuit court competency findings as well as other circuit court decisions governed by the “clearly erroneous” standard of review.