On Point

Question presented:

I. Under the federal bribery statute, Hobbs Act, and honest-services fraud statute, 18 U.S.C. §§ 201, 1346, 1951, it is a felony to agree to take “official action” in exchange for money, campaign contributions, or any other thing of value. The question presented is whether “official action” is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and honest-services fraud statute are unconstitutional.

State v. Brett W. Dumstrey, 2016 WI 3, 1/15/16, affirming a published court of appeals decision; case activity (including briefs)

Residents of multi-family dwellings, beware! According to the dissent, this decision “creates a great inequity” between those who live in houses and those who don’t (e.g. SPD clients). The majority holds that a locked, parking garage beneath an apartment building is not curtilage protected by the 4th Amendment, and an apartment dweller has no reasonable expectation of privacy in the private parking space for which he pays rent. Attorney Anthony Cotton, counsel for Dumstrey, offers his thoughts on the decision.

As we wait on SCOW to decide the petition for review on State v. Scruggs, ASPD Peter Heyne offers some news and thoughts on DNA surcharges. On January 7, 2016, the court of appeals rejected a no-merit report in State v. Jeffrey J. Wickman noting that neither State v. Radaj nor State v. Scruggs “squarely addresses whether a mandatory DNA surcharge is appropriate in circumstances where the defendant has previously submitted a DNA sample. Rather, at this time, it remains an open question whether a mandatory DNA surcharge is punitive in effect when applied to a defendant who previously gave a DNA sample or paid a surcharge.” (Wickman at 6-7).

State v. Trista J. Ziehr, 2015AP994-CR, 1/13/16, District 2 (one-judge opinion, ineligible for publication); case activity, including briefs

There isn’t much case law on Wisconsin’s “mandatory reporter” requirement, and this opinion makes no attempt to fill the gaps. Ziehr ran a daycare center and thus had a mandatory duty to report child abuse to the proper authorities whenever she had reasonable cause to suspect that such abuse had occurred. Wis. Stat. §48.981(2) & (6). A jury convicted her of failing to report abuse by her son. On appeal she argued primarily that: (1) the trial court erroneously instructed the jury; (2) the State’s complaint was duplicitous, and (3) the trial court erroneously admitted “other acts” evidence. She lost on all issues.

Columbia County v. Brittany N. Krumbeck, 2015AP1010, 1/14/16, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

In State v. Post, 2007 WI 60, 301 Wis. 2d 1, 733 N.W.2d 634, our supreme court rejected the notion that “repeated weaving” within a lane, without more, amounts to reasonable suspicion for a traffic stop. Krumbeck invokes Post to attack her OWI conviction but the court of appeals concludes there were enough other facts to justify the stop.

Professor Murat Mungen, Florida State University College of Law, just published this article explaining how expunging a person’s criminal record reduces the chances that he will reoffend.

Some interesting posts on this subject have popped up around the blogosphere. In this “introductory post” on EDTA testing, evidence professor Colin Miller explains the flaw in the State’s contention that the FBI’s EDTA testing proved that the blood in Halbach’s car did not come from the tube of Avery’s blood that someone tampered with. And in this post, he discusses cases addressing the admissibility (or inadmissibility) of EDTA testing.

Village of Bayside v. Ryan Robert Olszewski, 2015AP1033-34; 1/12/15; District 1 (not recommended for publication); case activity, including briefs

After Heien v. North Carolina and State v. Houghton, everyone predicted lots of litigation about law enforcement’s “reasonable mistakes of law” during traffic stops. This case marks the beginning of it.

State v. Gregory Tyson Below, 2014AP2614-2616-CR, 1/12,16, District 1 (not recommended for publication); case activity, including briefs

This was a high profile case in Milwaukee. Below was convicted of 29 charges of kidnapping, strangulation and suffocation, sexual assault, battery, reckless injury and solicitation of prostitutes. He appealed and asserted 4 claims for a new trial. The court of appeals rejected all of them.

State v. Marguerite Alpers, 2015AP1784-CR, 1/12/16, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court erroneously exercised its discretion in ordering Alpers to install an ignition interlock device “on [her] husband’s car” as a condition of probation in her OWI cases because the record didn’t establish the condition was a reasonable and appropriate means of advancing the goals of rehabilitation and public protection, State v. Miller, 2005 WI App 114, 11, 283 Wis. 2d 465, 701 N.W.2d 47.