On Point

State v. Marquese H., 2013AP565, 2013AP566, & 2013AP567, District 1, 5/21/13; court of appeals decision (1-judge, ineligible for publication); case activity: 2013AP565; 2013AP566; 2013AP567

The circuit court properly exercised its discretion in terminating Marquese H.’s parental rights because it considered the factors under § 48.426(1). The court rejects Marquese’s specific claim that the circuit court erred because, under § 48.426(1)(c) and Darryl T.-H.

Loren H. Laufman v. North Central Power Co., Inc., 2012AP2116, District 3 (per curiam; not eligible for publication or citation).

Normally, On Point would not trouble its readers with a per curiam decision involving insurance coverage issues.  This one, however, penalizes parties for violations of Wisconsin’s Rules of Appellate Procedure, so appellate lawyers of all stripes should pay attention.  Skipping over the substantive insurance issues,

Question presented:

Proper interpretation of Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), specifically whether a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously-stated objection, while physically present, to a warrantless search is a continuing assertion of 4th Amendment rights which cannot be overridden by a co-tenant.

Linda Metrish, Warden v. Burt Lancaster, USSC 12-547, 5/20/13

United States Supreme Court decision, reversing Lancaster v. Metrish, 683 F.3d 740 (6th Cir. 2012)

In a unanimous opinion issued only a month after oral argument, the Supreme Court holds that a state prisoner is not entitled to federal habeas relief based on the retroactive application of a state supreme court decision holding there is no diminished capacity defense under state law.

Dane County DHS v. John L.-B., 2013AP462, District 4, 5/16/13; court of appeals decision (1-judge, ineligible for publication); case activity

This decision rejects Dane County’s appeal from the dismissal of a TPR petition after a jury verdict in favor of the parent. Here’s the factual background:

Dane County filed a TPR petition against John L.-B. in January 2012, alleging failure to assume parental responsibility and six months of abandonment.

Court of appeals certification; case activity

Issue certified:

Is an OWI defendant’s right to confront the witnesses against him violated when a supervisor of the state crime lab testifies that a lab report prepared and certified by another, but unavailable, lab analyst establishes the defendant’s illegal blood alcohol concentration?  Does it make a difference that the lab supervisor said it was “his” opinion even though he did not perform any of the testing himself and simply noted that the unavailable analyst followed the proper protocol?

Village of Muscoda v. Samuel R. Anderson, 2012AP2216, District 4, 5/16/13; court of appeals decision (1-judge, ineligible for publication); case activity

Police had probable cause to administer a PBT where: the officer noticed an odor of intoxicants emanating from Anderson or his vehicle; Anderson had bloodshot eyes and slightly slurred speech and admitted he had consumed five drinks over the course of the night; and Anderson’s performance on the walk-and-turn and one-leg-stand tests suggested he might be intoxicated.

State v. Leshurn Hunt, 2010AP2516, District 4, 5/16/13 (not recommended for publication); case activity

Issue:  Was defendant’s decision not to testify at trial knowing, intelligent and voluntary on the grounds that; (a) the court conducted a defective colloquy; (b) the defendant was coerced to waive his right to testify; and (c) the defendant received ineffective assistance of counsel?

Holding:  Hunt’s waiver was fine.  The legal test is set forth in State v.

State v. Travis M. Ranta, 2012AP1663, District 4 (1-judge, ineligible for publication); case activity

Police were called to a campsite where the defendant admitted to drinking with underage individuals.  An hour later, another officer was called to the same site, where he observed the defendant behaving in a “belligerent, uncooperative [and] loud” manner.  A PBT showed the defendant had a .156 BAC, so he was informed that he couldn’t drive his truck out of the campsite.  

State v. Aaron S. Loos, 2012AP2154-CR, District 3, 5/14/13; court of appeals decision (1-judge, ineligible for publication); case activity

Though Loos was convicted of one misdemeanor and one felony at the same time, the maximum one-year term of probation for the misdemeanor under § 973.09(2)(a)1r. could not be increased by one year under § 973.09(2)(b)2. That statute may be applied only to increase the maximum term of probation on a felony conviction,