On Point

Randy White v. Robert Keith Woodall, USSC No. 12-794, 4/23/14, reversing and remanding Woodall v. Simpson, 685 F.3d 574 (6th Cir. 2012); case activity

It’s getting harder and harder to win a habeas case.  Woodall requested an instruction forbidding jurors from drawing adverse inferences from his decision to not testify during the penalty phase of his capital murder trial.  The majority opinion, authored by Scalia, held that SCOTUS precedent requiring a “no adverse inference” instruction was clearly established for the guilt phase of a trial, but not the penalty phase.

State v. Scott E. Oberst, 2014 WI App 58; case activity

The good faith exception to the exclusionary rule applies to evidence obtained during a period when binding Wisconsin appellate precedent permitted the warrantless installation of a global positioning system (GPS) device. Thus, even though the installation of the GPS device on the defendant’s vehicle was unconstitutional under United States v. Jones, 565 U.S. ___, 132 S. Ct. 945 (2012), exclusion of the evidence obtained from the device is an inappropriate remedy.

State v. Jack E. Hoppe, 2014 WI App 51; case activity

A sentencing court may not prohibit a defendant convicted of OWI from driving a motor vehicle as a condition of extended supervision when the length of extended supervision exceeds the maximum period for revoking operating privileges set by § 343.30.

State v. John Francis Ferguson, 2014 WI App 48; case activity

The circuit court did not erroneously exercise its discretion in denying Ferguson’s plea withdrawal motion, which was based on recantations by two witnesses who had previously said Ferguson fatally shot a man. The circuit judge applied the proper standard under State v. McCallum, 208 Wis. 2d 463, 561 N.W.2d 707 (1997), when it found the recantations were incredible as a matter of law and uncorroborated by other newly-discovered evidence, and its findings are not clearly erroneous.

State ex rel. Ardonis Greer v. Wayne J. Widenhoeft, 2014 WI 19, affirming a published court of appeals decision; case activity; Majority opinion:  Justice Ziegler; Dissent: Justice Bradley and C.J. Abrahamson

The DOC assured Greer his probation was over and issued a discharge certificate to that effect.  In truth, his probation term hadn’t yet expired.  So when he committed new crimes, the DOC revoked his probation.  The Majority rejects Greer’s claims that the DOC: (1) lacked jurisdiction to revoke probation, (2) denied due process, and (3) is subject to equitable estoppel.

State v. Daniel K. Rogers, 2012AP186-CR, District 4, 4/17/14; (1-judge opinion, ineligible for publication); case activity

The defendant, having been charged with sexual assault and released on bond, allegedly choked his victim to make her to lie on his behalf at trial. The circuit court admitted this as § 904.04(2) “other acts” evidence at the sexual assault trial, and the COA affirmed because the evidence showed consciousness of guilt.

State v. Paul J. Williquette, 2013AP2127-CR, District 4, 4/17/14; (1-judge opinion, ineligible for publication); case activity

What happens when a restitution award is twice the victim’s actual repair costs? In this case, not much. Williquette was ordered to pay restitution based upon State-submitted repair estimates.  Later, he moved for sentence modification claiming the actual (and lesser) amount the victim paid for repairs was a “new factor” justifying a reduced restitution award.  The COA held that by not challenging the estimates at sentencing, Williquette stipulated to their reasonableness and that the actual repair costs did not amount to a “new factor.”

State v. Neil A. Morton, 2013AP2366-CR, District 4, 4/17/14 (1-judge; ineligible for publication); case activity

This is another OWI case holding that a warrantless blood draw that would now be unlawful under Missouri v. McNeely is admissible under the good-faith exception to the exclusionary  rule.

State v. Brian J. Anderson,  2013AP913-CR, District 1, 4/15/14 (not recommended for publication); case activity

Anderson appealed his conviction for 1st-degree intentional homicide arguing that the trial court should have admitted evidence of his victim’s violent character under State v. McMorris and excluded “other acts” evidence under State v. Sullivan and § 904.04(2) and 904.03. The court of appeals rejects both arguments.

State v. Dennis R. Armstrong, 2014 WI App 59; case activity

The fact that Armstrong was entitled to eight months rather than approximately two years of sentence credit is a “new factor” because the information was unknowingly overlooked at sentencing and the amount of sentence credit was highly relevant to the circuit court’s imposition of the sentence:

¶13      At the sentencing hearing,