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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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Statements on 911 call and to police at the scene admissible under excited utterance exception to hearsay rule
State v. Shironski A. Hunter, 2014AP2521-CR, District 1, 9/15/15 (not recommended for publication); case activity (including briefs)
The trial court didn’t err in admitting statements witnesses made during a 911 call and to police at the scene of the crime because the statements were excited utterances. Moreover, the statements weren’t testimonial for Confrontation Clause purposes, so admitting them didn’t violate the defendant’s right to confront the witnesses against him.
John Oliver on Public Defenders!!!
Did you see “Last Week Tonight with John Oliver: Public Defenders” on HBO? It’s compelling, and it will make you laugh and cry simultaneously. Click here to watch it. Can we hire this guy?!
State v. Salinas, 2013AP2686-CR, petition for review granted 9/9/15
Review of an unpublished per curiam court of appeals decision; case activity
Issues (copied from the State’s PFR here):
Crimes may be joined in one trial if they are similar or if they are connected as part of a common plan. Here, the court of appeals reversed Salinas’ conviction because it decided allegations that he sexually assaulted his girlfriend’s child, and that he intimidated his girlfriend and her child, were not similar acts or connected as part of a common plan. Is the court of appeals’ decision in conflict with the well-established rule that joinder of charges must be broadly construed?
Improper joinder is subject to harmless error review. Here, the evidence of sexual assault and victim intimidation was overhwleming. Did the court of appeals err in concluding that the joinder of the charges was not harmless?
State v. Richard J. Sulla, Case No. 2013AP-CR, petition for review granted 9/14/15
Review of an unpublished per curiam court of appeals decision; case activity
Issues (derived from the court of appeals opinion):
Whether, in order to get an evidentiary hearing, a defendant’s postconviction motion to withdraw his plea because he did not understand the “read-in” concept must allege that he would have pled differently if he had understood the “read-in” concept? See State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996).
Failure to require jury to decide whether conduct qualified for sentence enhancer was error and prejudiced defendant
State v. Lonel L. Johnson, Jr., 2014AP2888-CR, District 3, 9/15/15 (not recommended for publication); case activity
High fives for the defense! The domestic abuse repeater enhancer applied to this defendant increased his maximum penalty for the charged offense. Thus, the court of appeals held (and the State conceded) that the jury had to find, beyond a reasonable doubt, that his underlying conduct qualified as an act of domestic abuse. That’s what Apprendi v. New Jersey, 530 U.S. 466 (2000) requires, but it didn’t happen here. The real win, however, is that for once the State did NOT prevail on its claim of harmless error!!
State v. Patrick K. Tourville, Case Nos. 2014AP1248-CR thru 2014AP1251-CR, petition for review granted 9/9/15
Review of an unpublished per curiam court of appeals decision; affirmed 2016 WI 17; case activity (for 2014AP1248-CR, which links to the other consolidated cases)
Issues (composed by On Point from the PFR)
Where the State agreed to cap its sentence recommendation on four cases at the “high end” of the recommendation of the presentence investigation (PSI) and the PSI did not recommend whether the sentences in the cases should be served concurrently or consecutively, did the State breach the plea agreement by recommending consecutive sentences?
Was there a sufficient factual basis for a plea to party to the crime of felony theft for “taking and carrying away” property when the defendant had no knowledge of the theft, but only received the stolen property and then moved it to a different location?
State v. James Elvin Lagrone, 2013AP1424-CR, petition for review granted 9/9/15
Review of an unpublished court of appeals decision; affirmed 2016 WI 26; case activity (including briefs)
Issues (composed by On Point)
Does a defendant have the right to testify at the mental responsibility phase of a bifurcated criminal proceeding?
If so, is an on-the-record colloquy regarding the waiver of the right to testify required?
Challenges to default TPR judgment rejected
State v. T.N., 2014AP2407 & 2014AP2408, District 4, 9/10/15 (one-judge decision; ineligible for publication); case activity
The circuit court properly entered a default judgment against T.N. in his TPR proceeding when, despite the court’s warnings and admonitions, T.N. failed to appear at a scheduled court appearance.
Seventh Circuit affirms grant of habeas relief, finds harmless error analysis done by Wisconsin Court of Appeals to be unreasonable
Mark D. Jensen v. Marc Clements, 7th Circuit Court of Appeals No. 14-1380, 9/8/15, affirming Jensen v. Schwochert, No. 11-C-0803 (E.D. Wis. Dec. 18, 2013)
At Jensen’s trial for the murder of his wife Julie the State introduced Julie’s handwritten letter to the police, written two weeks before her death, in which she wrote she would never take her life and that her husband should be the suspect if anything should happen to her. The Wisconsin Court of Appeals assumed the admission of the letter violated Jensen’s right to confrontation but found the error harmless. The Seventh Circuit holds that the court of appeals’ decision was an unreasonable application of the Chapman v. California, 386 U.S. 18 (1967), harmless error standard, and that the erroneous admission of the hearsay evidence had a substantial and injurious influence or effect in determining the jury’s verdict, thus satisfying the actual prejudice standard under Brecht v. Abrahamson, 507 U.S. 619 (1993).
Defendant had no expectation of privacy in text messages he sent to another person
State v. Ryan H. Tentoni, 2015 WI App 77; case activity (including briefs)
Tentoni does not have an objectively reasonable expectation of privacy in the text messages delivered to another person’s phone and therefore can’t seek to suppress the text messages and other subsequently obtained phone records as fruit of the government’s illegal search of the phone.
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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.