On Point

State v. Avan Rondell Nimmer, 2022 WI 47, June 23, 2022, reversing an unpublished court of appeals decision; case activity (including briefs)

This decision ultimately involves only the application of well-settled 4th Amendment law to the particular facts of the case rather than development of the law. But it comes perilously close to something worse, for three justices embrace a modification of the quantum of evidence needed to justify an investigatory stop and accept uncritically the claims that the manufacturer of ShotSpotter acoustic sensors makes for the accuracy of its product and touts the device’s asserted accuracy in assessing reasonable suspicion in future cases.

Sauk County v. S.A.M., 2022 WI 46, reversing an unpublished court of appeals opinion, 2019AP1033; case activity

Unlike other states, Wisconsin appellate courts have for decades dismissed most appeals from expired ch. 51 orders as moot. As a result, there was been little appellate review of circuit court decisions declaring people mentally ill, committing them to government custody, and medicating them against their will. Not any more. In a 4-3 decision, SCOW holds that appeals from expired recommitment orders are not moot due to their collateral consequences. While S.A.M. won the war on mootness, he lost his due process and sufficiency of evidence claims. His recommitment was affirmed.

State v. Mitchell D. Green, 2021AP267-CR, petition for review of an unpublished COA opinion granted 6/22/22; reversed, 2023 WI 57 case activity (including briefs)

Question presented (from the State’s PFR):

Did the circuit court erroneously exercise its discretion when it concluded that there was a manifest necessity for a mistrial after Green introduced unnoticed third-party perpetrator evidence at trial via the testimony of a witness who claimed to have committed the crime but was unrepresented by counsel?

State v. Gerald P. Mitchell, 2022 WI App 31; case activity (including briefs)

Mitchell v. Wisconsin, 139 S.Ct. 2525 (2019), held that when police have probable cause to believe a driver has committed a drunk driving offense and the driver is unconscious or stupefied to a point that requires hospitalization and precludes a breath test, police will be justified in getting a blood test without a warrant under the exigent circumstances exception unless the driver can show that; (1) his or her blood wouldn’t have been drawn if police weren’t seeking blood alcohol information; and (2) police didn’t reasonably conclude they had no time to seek a warrant given their other pressing needs or duties. See also State v. Richards, 2020 WI App 48, 393 Wis. 2d 772, 948 N.W.2d 359. Applying that test to Mitchell himself on remand, the court of appeals holds Mitchell hasn’t made the first showing and therefore the warrantless blood draw of him was reasonable.

State v. Donald P. Coughlin, 2019AP1876-CR, 2022 WI 43, reversing an unpublished court of appeals opinion; case activity (including briefs)

How should an appellate court measure the sufficiency of the evidence to support a jury verdict where the instructions and the special verdict define the crime differently? In a 5-1 opinion, the majority held, based on the facts of this particular case, that the jury instructions should control. It then considered whether the evidence of child sexual assault was sufficient even though the State failed to prove that the charged conduct occurred during the charged time periods. The majority drew inferences in favor of the verdict and answered “yes.” Justice Dallett dissented on both points. Justice Karofsky did not participate.

State v. Ryan Hugh Mulhern, 2022 WI 42, 6/21/22, reversing a per curiam court of appeals decision, 2019AP1565, case activity (including briefs)

When we posted on SCOW’s grant of review of the non-citable court of appeals decision in this case, we imagined the court might accept the state’s invitation to change the scope of the rape shield law and hold the evidence at issue here–testimony proffered by the state that a complaining witness had not engaged in sexual intercourse–admissible. Instead, the court repeats what it has said in prior cases: that such evidence falls within the rape-shield prohibition. But it says the erroneous introduction of the evidence was harmless in this case, so it reverses the court of appeals’ grant of a new trial.

State v. Ricky Rodriguez, 2021AP2053-Cr, 6/14/22, District 4, (1-judge opinion, ineligible for publication); case activity (including briefs)

Rodriguez was convicted of two misdemeanors and placed on probation in early 2017. a few months later, he committed two felonies and was sentenced to prison. His probation for the misdemeanors was revoked, and he was sentenced to 9 months in jail consecutive to any other sentence. In his pro se appeal, he argued that his sentence after revocation cannot, as a matter of law, run consecutive to the sentence for his felonies based on Drinkwater v. State, 69 Wis. 2d 60, 230 N.W.2d 126 (1975). The court of appeals says that it can.

State v. Smolarek, 6/16/22, District 4, (1-judge opinion, ineligible for publication); case activity (including briefs)

Smolarek was involved in a motorcycle accident. After allegedly admitting that he had smoked marijuana much earlier that day, an officer arrested him. A blood test showed that he had been driving under the influence of THC. Smolarek moved to suppress arguing that the officer got his story wrong. He admitted that he had smoked marijuana after the accident. So the officer lacked probable cause to arrest him.

Denezpi v. United States, No. 20-7622, 2022 WL 2111348, June 13, 2022, affirming U.S. v. Denezpi, 979 F.3d 777 (10th Cir. 2020); Scotusblog page (including briefs and commentary)

Denezpi was prosecuted in the Court of Indian Offenses, a creature of the federal Bureau of Indian Affairs that provides a criminal court system for those (relatively few) tribes that haven’t set up their own. After serving a 140-day sentence in that prosecution, he was charged for and convicted of the same conduct in federal court—and ultimately given a 30-year sentence. The Supreme Court rejects his claim that the second prosecution was barred by the Double Jeopardy Clause.

Then listen to yesterday’s WPR interview with ACLU staff attorney Tim Muth about the continued horrible conditions there. They have severe staffing shortages–a 40% shortage of guards, 50% shortage of teachers, and 67% shortage of social workers.  Youth are spending 20 or 21 hours per day in their cells. Wasn’t Lincoln Hills supposed to be […]