On Point

seventh circuit court of appeals decision, denying habeas relief in Wis COA No. 2008AP398-CR

Habeas – Duty to Preserve Apparent Exculpatory Evidence 

Pretrial destruction of car driven by McCarthy didn’t violate State’s duty to preserve exculpatory evidence, the court rejecting McCarthy’s argument that the destruction unconstitutionally impaired his affirmative defense of brake failure (against charge of causing great bodily harm by operating vehicle while under the influence,

Joseph Muniz v. Smith, 6th Cir. No. 09-2324, 7/29/11

sixth circuit court of appeal decision

Habeas – Ineffective Assistance – Sleeping Counsel 

The fact that counsel has slept through a portion of trial does not, alone, amount to denial of counsel so as to require relief under United States v. Cronic, 466 U.S. 648 (1984), rather than inquiry into the prejudice component of  Strickland v.

State v. Jeffrey D. Knickmeier, 2011AP368-CR, District 4, 11/25/11

court of appeals decision (1-judge, not for publication); pro se; case activity

The court upholds the sentence – 2, concurrent 6-month jail terms for theft by bailee – of disbarred attorney Knickmeier. The court patiently discusses each of Knickmeier’s challenges to sentencing discretion (some of which, to be blunt, seem frivolous), and concludes:

¶12      In summary,

State v. William M. Hughes, 2011AP647-CR, District 4, 8/25/11

court of appeals decision (1-judge, not for publication); for Hughes: Michael C. Witt; case activity

Traffic stop supported by reasonable suspicion to believe Hughes was operating while intoxicated:

• The stop occurred at night, after a football game, when there is an increased frequency of drunk driving;
• Citizen informant reported observing vehicle weaving outside lane of travel on Interstate,

Rock Co. HSD v. Timothy F., 2011AP1354, District 4, 8/25/11

court of appeals decision (1-judge, not for publication); for Timothy F.: Carl W. Chessir; case activity

The court rejects Timothy F.’s challenge to grant of summary judgment as to grounds for termination (abandonment, § 48.415(1)(a)2.): even if Timothy arguably had “good cause” for not visiting his child (Timothy had absconded from probation in fear of possible revocation),

State v. Steven A. Avery, 2011 WI App 124 (recommended for publication); for Avery: Martha K. Askins, Suzanne L. Hagopian, SPD, Madison Appellate; case activity

Search Warrant – Execution – Reasonableness 

Warrant-based search of Avery’s property was a reasonable continuation of the original search 3 days earlier.

General statement:

¶18      Generally, searches are subject to the “one warrant, one search” rule.  

State v. Bridgette M. Glaze, 2010AP3128-CR, District 2, 8/24/11

court of appeals decision (1-judge, not for publication); for Glaze: John C. Orth; case activity

Although Glaze’s stop by one officer investigating possible domestic violence was likely unsupported (¶9), the stop was adequately supported by an alternative basis: observations of a second, off-duty officer which, under the “collective knowledge” doctrine were imputed to the first officer and supplied reasonable suspicion that Glaze was driving while intoxicated.

County of Ozaukee v. David W. Berend, 2011AP291, District 2, 8/24/11

court of appeals decision (1-judge, not for publication); for Berend: Walter Arthur Piel, Jr.; case activity

Breathalyzer test results are admissible (and presumptively accurate) in OWI and PAC proceedings if “the sample was taken within 3 hours after the event to be proved,” § 885.235(1g). Berend’s test was administered at 11:07, and he said he’d stopped drinking at 8:00.

State v. Paschall Lee Sanders, 2011 WI App 125 (recommended for publication); for Sanders: Ellen Henak, SPD, Milwaukee Appellate; case activity

The definitions of “mental disorder” in since-amended pattern instruction Wis JI—Criminal 2502 (2009), though concededly contradictory, didn’t prevent from being tried the issue of whether Sanders qualified for commitment as a sexually violent person:

¶14      As we have seen, two sentences in what the circuit court told the jury are contradictory:

(1)   “Mental disorder means a condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence and causes serious difficulty in controlling behavior.”  (Emphasis added.)

(2)   “Not all persons with a mental disorder are predisposed to commit sexually violent offenses or have serious difficulty in controlling behavior.”

As noted earlier,

State v. Jose A. Reas-Mendez, 2010AP1485-CR, District 1, 8/23/11

court of appeals decision (not recommended for publication); for Reas-Mendez: Andrea Taylor Cornwall, SPD, Milwaukee Appellate; case activity

The victim’s pretrial lineup identification of Reas-Mendez isn’t suppressible: the lineup was comprised of “four men, all of generally the same build, in the same type of clothing, with dark, shoulder-length hair, approximately of the same age, and wearing bandanas covering their faces from the tops of their noses down,”