On Point

On review of a published court of appeals decision in Kempainen (case activity) and a per curiam decision in Hurley (case activity)

Issues (adapted from the State’s  PFR in Hurley):

Did the amended complaint charging repeated sexual assault of a child, which alleged that Hurley assaulted his stepdaughter at least 26 times over a five or six-year charging period, satisfy Hurley’s due process right to prepare a defense?

Did the circuit court properly exercise its discretion in admitting “other acts” evidence that Hurley repeatedly assaulted his sister when she was 10 and he was 14 in view of the greater latitude shown “other crimes” evidence in child sexual assault cases?

Did the circuit court err in ordering a new trial due to the prosecutor’s unobjected-to remark in closing argument about Hurley’s failure in his trial testimony to make a strong denial of his sister’s allegations?

On review of a published court of appeals decision; case activity

Issue (adapted from Daniel’s PFR):

1. Under Wisconsin law, should the defendant bear the burden of proving incompetency? If so, is it by clear and convincing evidence or by a preponderance of the evidence?

2. When postconviction counsel questions the defendant’s competency, but the defendant insists that he is competent, what procedures should the circuit court employ?

3. What standard of review should an appellate court apply to a circuit court’s determination of a defendant’s competency to participate in postconviction proceedings?

On review of an unpublished, one-judge court of appeals decision; case activity

Issues (composed by On Point):

Whether the trial court was clearly wrong in finding that Cecil had not failed to assume parental responsibility for his infant son?

Whether a parent’s expression of interest in his child equates to having a “substantial relationship” with the child?

State v. Walter J. Kugler, 2014AP220, District 2, 9/17/14 (one-judge opinion, ineligible for publication); case activity

Kugler challenged his first OWI conviction by arguing that the state trooper who stopped him did not have the requisite probable cause and improperly requested, as a community caretaker, that he submit to a PBT (which he refused). The court of appeals reframed the issue as whether the trooper had reasonable suspicion of an OWI when he detained Kugler for field sobriety tests. You can guess the result. The court of appeals also rushed ahead to decide a McNeely issue that the Wisconsin Supreme Court is literally poised to decide.

State v. Travanti D. Schmidt, 2014AP718-CR, District 4, 9/18/14 (one-judge opinion, ineligible for publication); case activity

And we do mean “spilled milk.” A jury convicted Schmidt, an inmate, of disoderly conduct for spilling milk on a prison guard. Defense counsel did not object to the admission of a videotape showing the incident from a side view, some distance away from Schmidt’s cell.  Without the video, there was only the testimony of the guard and Schmidt. The court of appeals held that exclusion of the video wouldn’t have made a difference; the jury would have believed the prison guard anyway.

State v. Andrew J. Kuster, 2014AP109-CR, District 2, 9/17/14 (one-judge opinion, ineligible for publication); case activity

This seemingly run-of-the-mill OWI appeal has an interesting little wrinkle.  The police conducted a warrantless blood draw on Kuster before SCOTUS decided Missouri v. McNeely, 569 U.S.__, 133 S.Ct. 1552 (2013), but they didn’t have the blood tested until after the  decision came out.  This sequence of events did not trouble the court of appeals because it views the seizure and subsequent analysis of a person’s blood as a single event.

State v. Marie A. Ezell, 2014 WI App 101; case actvity

Prison guards overheard Ezell tell her incarcerated boyfriend that she would smuggle in drugs for him on her next visit. When she tried to follow through, the guards detained her in a conference room, questioned her, and obtained damning evidence.  Due to the lack of Miranda warnings, this custodial interrogation violated the 5th Amendment, but the court nevertheless declined to suppress the physical evidence derived from the Miranda violations.

State v. Samantha J., 2014AP988, 2014AP989, 2014AP1017, District 1, 9/17/14 (1-judge opinion, ineligible for publication); case activity

This case is noteworthy in 2 respects.  First, the court of appeals upheld a default judgment as to grounds for terminating a mother’s parental rights–always a significant step, given the stakes.  And, second, the court of appeals complimented a brief–specifically, the brief filed by the GAL, Linnea Matthiesen.

State v. Jevon S.  Appeal Nos. 2014AP1426 & 2014AP1427; State v. Latoya M., Appeal Nos. 2014AP1424 & 2014AP1425, District 1, 9/16/14 (one-judge opinions, ineligible for publication); (case activity for Jevon S.; case activity for Latoya M.)

Jevon S. and Latoya M. appealed orders terminating their parental rights. Neither contested the grounds for termination, but at their joint dispositional hearing they both wanted their two children removed from their separate foster homes and placed with Jevon’s mother. The circuit court ruled against them, and the court of appeals affirmed.

State v. Thomas J. Anker, 2014 WI App 107; case activity

If a conservation warden shouted “you’re under arrest,” ordered you to stop walking, forcibly handcuffed you, and restrained you in his car until he could turn you over to investigating authorities, would you think you were under arrest or simply “temporarily detained”? The State, with a straight face, claimed these facts showed a Terry stop. The court of appeals, with a stern tone, rebuked the State and sharply criticized its brief.