On Point

State v. Daniel D. Bolstad, 2013AP2139, District 4, 7/17/14 (not recommended for publication); case activity

The court of appeals orders a new trial in the interest of justice because the prosecutor’s unwitting use of false testimony as critical evidence to establish that Bolstad was lying so clouded the crucial issue of credibility that it prevented the real controversy from being fully tried.

State v. Vernon D. Hershberger, 2014 WI App 86; case activity

As a general rule, a person may not collaterally attack a prior judicial order or judgment in a proceeding brought to enforce that order or judgment, e.g., State v. Campbell, 2006 WI 99, ¶¶51-55, 294 Wis. 2d 100, 718 N.W.2d 649. The court of appeals holds this rule also applies to proceedings brought to enforce an administrative order.

State v. Angelica Nelson, 2014 WI 70, 7/16/14, affirming an unpublished per curiam court of appeals decision; majority decision by Justice Roggensack; case activity

Nelson wanted to testify at her trial on child sexual assault charges, but after a colloquy with her about waiving her right to remain silent the trial judge wouldn’t let her because he concluded she was testifying against counsel’s advice and her testimony was “completely irrelevant” to the elements the State had to prove. (¶¶14-16). The supreme court assumes without deciding that the trial judge erred, but it follows the majority of jurisdictions in holding that erroneous denial of a defendant’s right to testify is subject to harmless error analysis because its effect on the outcome of the trial is capable of assessment.

State v. Antonio D. Brown, 2014 WI 69, 7/16/14, affirming a published court of appeals decision; majority opinion by Justice Bradley; case activity

Another defense victory!  Police stopped  Brown’s car due to an alleged violation of §347.13(1), which prohibits the operation of a vehicle at night unless its tail lamps are in “good working order.”  In a 4-3 decision, the majority holds that the police here misunderstood the statute, so the stop was illegal.  Furthermore, a stop based upon an officer’s mistake of law, is unlawful, and the results of the ensuing search must be suppressed. Justice Prosser, dissenting, predicts the majority’s interpretation will be “a bonanza for litigants seeking to challenge motor vehicle stops.” ¶79.

Kenosha County v. Vermetrias W., 2014AP861-FT, District 2, 7/16/14 (one-judge decision; ineligible for publication); case activity

Vermetrias had been the subject of a Chapter 51 commitment order, which Kenosha County sought to extend. Section 51.20(1)(a)2 provides than an individual is the proper subject for commitment if he or she poses a danger to himself or herself or to others.  Vermetrias presented evidence that there was not a “substantial likelihood” she would become dangerous if her commitment ended.  The trial court ruled against her.  The court of appeals affirmed, but complimented those involved in this matter:

State v. Penny S. Rosendahl, 2014AP349-CR, District 2 (1-judge opinion, inelgible for publication); case activity

¶8        When the evidence includes disputed testimony from the arresting officer and a video showing events leading up to the arrest, the circuit court’s findings of fact are subject to review under the clearly erroneous standard.  State v. Walli, 2011 WI App 86, ¶14, 334 Wis. 2d 402, 799 N.W.2d 898.  Here, the deputy’s testimony was that Rosendahl’s vehicle weaved within its lane and crossed the center line.  The circuit court found that the video showed that Rosendahl’s vehicle touched the center line on three occasions.  We have reviewed the record and conclude that the circuit court’s finding was not clearly erroneous.

State v. Erick O. Magett, 2014 WI 67, 7/16/14, affirming an unpublished court of appeals decision; majority opinion by Justice Prosser; case activity

The circuit court erred when it prevented Magett from testifying on the issue of mental disease or defect during the responsibility phase of his NGI trial because the court mistakenly believed that Magett was not a competent witness regarding his own mental condition and that he was required to present expert testimony on the issue. The circuit court also erred in dismissing Magett’s NGI defense without hearing any testimony during the responsiblity phase. However, a majority of the supreme court holds these errors are harmless, so Magett does not get a new hearing on the issue of mental responsibility.

State v. Joseph J. Spaeth, 2014 WI 71, 7/16/14, on certification from the court of appeals, and reversing the circuit court’s dismissal order; majority opinion by Justice Gableman; case activity

A necessary predicate of a commitment under ch. 980 is a conviction for a sexually violent offense. This case raises an unusual issue regarding predicate convictions: Can the state continue to prosecute a ch. 980 proceeding if the predicate conviction that was alleged in the petition is vacated and dismissed after the petition is filed? The supreme court answers “yes,” holding that the sufficiency of a ch. 980 petition is to be assessed as of the time it is filed, and at the time the petition in this case was filed there was a valid conviction for the predicate offense.

State v. Hatem M. Shata, 2013AP1437-CR, District 1, 7/15/14 (not recommended for publication), petition for review granted, 12/18/14, reversed, 2015 WI 74; case activity

Trial counsel was ineffective for failing to inform Shata, an Egyptian foreign national, that pleading guilty to possession of more than 1,000 but less than 2,500 grams of THC with intent to deliver would result in his deportation.

State v. Clayton W. Williams, 2014 WI 64, 7/15/14, reversing a published court of appeals decision; majority opinion by Justice Prosser; case activity

This opinion addresses § 346.65(2)(am)6. as it applied to OWI 7th, 8th, and 9th offenses committed between July 1, 2010, when the statute first took effect, and April 10, 2014, when it was amended by 2014 Wis. Act 224. During that time period, the statute provided that the offense was a Class G felony, and that “[t]he confinement portion of a bifurcated sentence imposed on the person under [§] 973.01 shall be not less than 3 years.” The supreme court concludes this language is ambiguous because it could be read either to require a court to impose a bifurcated sentence or, instead, to permit a court to order probation with or without imposition of a bifurcated sentence, but that the legislative history makes it clear the language requires courts to impose a bifurcated sentence with a mandatory minimum three-year period of initial confinement.