On Point

State v. Eddie Lee Anthony, 2015 WI 20, affirming unpublished COA decision; click here for docket and briefs

Resolving an issue of first impression, SCOW has decided that a defendant may forfeit his constitutional right to testify by stating an intent to bring up irrelevant matters or by engaging in conduct incompatible with the assertion of that right. Also, the erroneous denial of the right to testify is subject to a harmless error analysis–even where the record shows the defendant would testify to both relevant and irrelevant matters.

State v. Bernard Ikechukwel Onyeukwu, 2014AP518-CR, 2/26/15, District 4 (not recommended for publication); click here for briefs.

The State charged the defendant with 10 counts of sexual assault, 5 of which required proof that the victim suffered from a mental deficiency and that the defendant knew it. The jury acquitted on 6 counts. Just 2 of the convictions required proof of mental deficiency. They spawned interesting grounds for appeal, but this decision just wasn’t up to the task.

State v. Eduardo Ivanez, 2013AP1901-CR, 2/26/15,  District 1 (not recommended for publication); click here for briefs

Ivanez appealed his conviction for 1st-degree intentional homicide and hiding a corpse on the grounds that statements he made to the police should have been suppressed and the admission of those statements impelled him to testify that he killed the victim in self-defense, a dubious trial strategy. The court of appeals assumed, without deciding, that the trial court had erred but affirmed under the harmless error doctrine.

Dane County DHS v. Hershula B., 2014AP2076, 2/26/15, District 4  (one-judge opinion, ineligible for publication); click here for docket

Hershula appealed an order terminating her parental rights. She argued that the trial court erred in directing a verdict on the abandonment issue because she presented evidence that she had communicated indirectly with her child. The court of appeals held that the phrase “communicate with the child” requires that the child share in the action of communicating with the parent. Slip op. ¶22. Indirect communications don’t count.

Yates v. United States, USSC No. 13-7451, 2015 WL 773330 (February 25, 2015); reversing 733 F.3d 1059 (11th Cir. 2013); Scotusblog page

In a four-one-four decision that is chock-a-block with nautical references and features some sparring about the canons and methods of statutory interpretation, the Supreme Court holds that the “anti-shredding provision” of the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1519, applies only to records, documents, or similar types of “tangible objects” used to record or preserve information. Thus, Yates’s conviction—for destroying fish that were evidence of his alleged violation of federal fishing regulations—must be jettisoned: “A fish is no doubt an object that is tangible; fish can be seen, caught, and handled, and a catch, as this case illustrates, is vulnerable to destruction. But it would cut § 1519 loose from its financial-fraud mooring to hold that it encompasses any and all objects, whatever their size or significance, destroyed with obstructive intent.” (Plurality at 2).

State v. David M. Wagner, 2014AP842-CR, District 2, 2/25/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Wagner voluntarily consented to a search of his person, and was not merely “[a]cquiesc[ing] to an unlawful assertion of police authority,” State v. Johnson, 2007 WI 32, 16, 299 Wis. 2d 675, 729 N.W.2d 182, when he agreed to the search on the heels of the officer’s assertion of authority to search Wagner’s car.

Sheboygan County v. Christopher A.G., 2014AP2489, District 2, 2/25/15 (one-judge decision; ineligible for publication); case activity

The circuit court erred in holding a due process hearing on Christopher’s protective placement without Christopher’s physical presence and without the guardian ad litem (GAL) waiving his attendance in writing prior to the hearing as required by § 55.10(2) and Jefferson County v. Joseph S., 2010 WI App 160, 330 Wis. 2d 737, 795 N.W.2d 450.

State v. Jeromy Miller, 2014AP1246-CR, 2/24/15, District 2 (not recommended for publication); click here for docket and briefs

This decision smells like SCOW bait.  Miller pleaded guilty believing that he had the right to appeal the circuit court’s denial of his pre-trial motion to dismiss. Both the court and defense counsel told him so. The State concedes they were wrong. The court of appeals held the error harmless because the motion had no merit. In doing so it bungled case law re plea withdrawal and the “prejudice” prong of an ineffective assistance of counsel claim.

State v. Beal, 2014AP1362, 2/24/15, District 1 (not recommended for publication); click here for briefs and docket

During his opening, defense counsel told the jury that Beal would testify to a version of events that contradicted the State’s version, but then he broke that promise. Beal claimed ineffective assistance of trial counsel. The court of appeals and held that Beal didn’t even deserve a hearing on his claim.

County of Taylor v. Dean T. Woyak, 2104AP1463, 2/24/15, District 3 (one-judge opinion, ineligible for publication); click here for briefs

Woyak was convicted of OWI and PAC. He had driven into a ditch and was discovered with beer cans littering his car. He claimed that he drank the alcohol that resulted in a .222 BAC after the accident not before or during driving. Thus, the trial court should not have instructed the jury that it could find him intoxicated based on the results of an alcohol-concentration test performed within 3 hours of driving.