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January 2021 publication list

On January 27, 2021, the court of appeals ordered the publication of the following criminal law related decisions: [continue reading…]

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State v. Mercado, 2021 WI 2, 1/20/21, reversing a published court of appeals decision; case activity (including briefs)

Mercado stood trial for sexual assault of three young girls. A video of each girl’s forensic interview was played for the jury pursuant to Wis. Stat. § 908.08. Mercado contends that none of the videos were properly admitted. The supreme court holds that he forfeited most of his challenges, and rejects those it considers. [continue reading…]

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State v. Jalen F. Gillie, 2020AP372, 1/20/21, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

An officer stopped Gillie’s car on a “dark night” because of “suspected illegal window tint.” An eventual search of the car turned up a gun and Gillie was convicted of carrying a concealed weapon without a permit. On appeal he renews his argument that there was no reasonable suspicion for the stop. The court of appeals agrees with him on this, and so reverses his conviction (and declines to address his other Fourth Amendment claims connected to the encounter). [continue reading…]

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COA holds other acts issue forfeited

State v. James Lee Ballentine, 2019AP1597, 1/20/21, District 2 (not recommended for publication); case activity (including briefs)

Ballentine stood trial for three counts of delivering drugs. The charges arose from controlled buys; James was the informant and buyer. Ballentine’s defense was that James–seeking mitigation in his own drug charges–had framed Ballentine. Ballentine’s theory was that James had come into the alleged sales with the drugs already on him, and that he had concealed this fact by hiding them in such a way that the supervising police officers’ pat-downs would not find them. As part of this defense, Ballentine wished to adduce testimony that James had successfully concealed drugs from a police pat-down before, during an arrest; the drugs were eventually recovered after James ditched them in the police station. [continue reading…]

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State v. Ryan Hugh Mulhern, 2019AP1565-CR, petition to review granted 1/20/21; case activity (including PFR and briefs)

Issue presented (from the state’s PFR)

Does § 972.11(2)(b), the “rape shield” statute, bar relevant evidence of the complainant’s lack of sexual conduct when the state offers the evidence to corroborate the complainant’s allegation of sexual assault and the evidence is not prejudicial to the complainant or the defendant and causes none of the harms the rape shield law is intended to protect against? [continue reading…]

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State v. Manuel Garcia, 2018AP2319-CR, petition for review granted 1/20/21; case activity

Issue for review: (adapted from the State’s PFR  and the COA’s opinion):

Whether the State may invoke the impeachment exception to the exclusionary rule during its case-in-chief and thereby use a defendant’s statement, taken in violation of Miranda, to rehabilitate one of its witnesses?

[continue reading…]

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State v. Cesar Antonio Lira, 2019AO691-CR, petition for review granted 1/20/21; case activity

Issues presented (from the State’s PFR):

1. Under §973.155, a convicted offender is entitled to sentence credit for “all days spent in custody in connection with the course of conduct for which sentence was imposed.” And §973.15(5) provides that an offender lawfully made available to another jurisdiction is entitled to credit for custody time in that jurisdiction “under the terms of s. 973.155.”

The court of appeals awarded Lira over 11 years of credit for custody in Oklahoma under §973.15(5), despite the fact that the Oklahoma sentence was not “in connection with” the Wisconsin offenses for which he was sentenced. It relied on State v. Brown, 2006 WI App 41, 289 Wis. 2d 823, 711 N.W.2d 708, which holds that courts determining credit under section 973.15(5) may not consider “the terms of s. 973.155,” including whether the custody in the other jurisdiction is “in connection with” the Wisconsin offense.

[continue reading…]

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State v. Octavia W. Dodson, 2018AP1476-CR, petition for review granted 1/20/21; case activity (including briefs)

Issue presented:

Did the sentencing court violate Dodson’s Second Amendment right to keep and bear arms by considering his status as a lawful gun owner an aggravating factor at sentencing?

[continue reading…]

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