On Point

The latest edition of SCOWstats reports that from 2019-2021 SCOW issued defense wins in 38% of 4th Amendment cases. Believe it or not, that is cause for celebration! It dwarfs the percentages of 4A victories in terms reaching back to 1995-1996. Historically, which justices have been most (and least) receptive to 4A arguments? Find out […]

State v. Antonio Darnell Mays, 2022 WI App 24; case activity (including briefs)

Mays was accused of forcing his way into an apartment with and firing a gun at at least one of its occupants. One occupant fired back; in the end, two people were dead. The state initially charged Mays with, among other things, a reckless homicide for each of the deaths. But when, at trial, the evidence suggested that one of the decedents had been shot not by Mays, but by the occupant returning fire at Mays, the state moved to amend the information as to that death to charge felony murder instead. Mays opposed the amendment, and ultimately the state instead convinced the court to instruct the jury on felony murder as a lesser-included offense of reckless homicide. The jury convicted Mays of this lesser-included (and other counts).

State v. Teresa L. Clark, 2022 WI 21, 4/20/22, reversing the circuit court on bypass, case activity (including briefs)

A defendant may collaterally attack a prior OWI conviction if she was not represented by counsel and did not knowingly, intelligently, and voluntarily waive the right to counsel during that proceeding. Once she points to evidence of this claim, the burden shifts to State to prove a valid waiver. In a split opinion, SCOW now holds that if the transcript of the prior OWI hearing is unavailable, the burden doesn’t shift. The defendant must prove that her right to counsel was in fact violated–which is virtually impossible.

Sheboygan County DH&HS v. E.C., 2021AP1655, 4/20/22, District 2; (1-judge opinion, ineligible for publication); case activity

While “Nina” was married to “John,” she became pregnant with “Eric’s” baby. A court found the baby to be a “child in need of protective services” and gave the standard TPR warning to Nina, but not to Eric.  Afterward, Eric established that he was the baby’s father. When the court terminated his parental rights in this case, he argued that his exclusion from the earlier CHIPS proceeding violated his right to due process and provided “good cause” for failing to establish a substantial relationship with the baby. The court of appeals rejected both arguments.

State v. Bradley C.  Burgess, 2021AP1067-CR, District 4, 4/21/22 (not recommended for publication); case activity (including briefs)

A traffic stop should last only as long as necessary for the police to complete the “mission” of investigating the traffic infraction that justified the stop, including ordinary inquiries incident to the stop. Rodriguez v. U.S., 575 U.S. 348 (2015); State v. Smith, 2018 WI 2, 379 Wis. 2d 86, 905 N.W.2d 353. Applying that standard here, the court of appeals holds the stop of the car Burgess was riding in wasn’t unreasonably extended by the officer’s asking the passengers for identification and running records checks on them.

Waukesha County v. E.B.V., 2021Ap1910, District 2, 4/20/22 (one-judge decision; ineligible for publication); case activity The circuit court granted the County’s motion to dismiss the truancy petition filed against E.B.V. because E.B.V. was no longer truant and, after initially contesting the facts of the petition, he entered into a consent decree. J.C.V., one of E.B.V.’s […]

State v. S.J., 2022AP160, 4/19/22, District 2 (1-judge opinion, ineligible for publication); case activity

“Sharon” pled “no contest” to being an unfit parent, and then the circuit court held that it was in “Danielle’s” best interests to terminate Sharon’s parental rights so that Danielle’s paternal aunt could adopt her. Sharon appealed that decision arguing that the circuit court failed to give sufficient consideration to 1 of the 6 “best interests of the child” factors in §48.426(3).

State v. Percy Antione Robinson, 2020AP1728-Cr, certification filed 4/19/22, District 1; case activity (including briefs)

Whether Milwaukee County’s CR-215 procedure for determining probable cause triggers an accused’s 6th Amendment right to counsel for any subsequent “critical stage” of the legal proceeding?

State v. Garland Dean Barnes, 202AP226-CR, petition for review of a per curiam opinion granted 4/15/22; affirmed 6/6/23; case activity (including briefs)

Questions Presented:

Can a defendant open the door to testimonial hearsay violating his confrontation rights, and which was excluded based on an egregious discovery violation, by challenging the quality of the police investigation?

Can the claim that a non-testifying officer witnessed the defendant commit the crime be admitted over hearsay objections under the theory that it is admissible to show the course of investigation, not for the truth of the matter asserted?

State v. Charles W. Richey, petition to review a per curiam opinion granted 4/13/22; case activity (including briefs)

Question presented:

Whether, at the time of the stop, Officer Meier only had a generalized hunch that Richey’s motorcycle may have been the one that committed a traffic violation.