On Point blog, page 3 of 3
State v. David J. Balliette, 2009AP472, Wis SCT rev grant, 8/31/10
decision below: summary order (not posted); case information here; prior appeal: 2001AP2527-CR; for Balliette: Steven D. Grunder, SPD, Madison Appellate
Issue (from AG’s petition for review):
Is an evidentiary hearing into the effectiveness of post-conviction counsel required in every case where the § 974.06 motion merely makes the conclusory allegation that post-conviction counsel was ineffective for not raising additional challenges to the effectiveness of trial counsel on direct review?
Mandamus – Generally; John Doe Procedure – Generally – Judicial Screening; Statutory Construction
Hakim Naseer v. Circuit Court for Grant County, 2010 WI App 142; pro se
Mandamus – Generally
¶4 A supervisory writ of mandamus is a mechanism by which a court may compel a public official to perform a legally obligated act. State ex rel. Robins v. Madden, 2009 WI 46, ¶10, 317 Wis. 2d 364, 766 N.W.2d 542. Because a supervisory writ “invokes our supervisory authority,
Expert Witness Qualifications; Admissibility – Field Sobriety Tests; WI (Drugs) – Sufficiency of Evidence
City of Mequon v. James E. Haynor, 2010AP466-FT, District 2, 9/8/10
court of appeals decision (1-judge, not for publication); for Haynor: Peter L. Ramirez; BiC; Resp.; Reply
Expert Witness Qualifications – Lab Chemist: Physiological Effects of Drugs
The trial court didn’t erroneously exercise discretion in qualifying as an expert, the supervisor of forensic toxicology at the Wisconsin State Laboratory of Hygiene on the matter of how certain drugs interact and impair judgment,
Arrest – Probable Cause – OWI
County of Washington v. Michael D. Brazee, 2010AP687, District 2, 9/8/10
court of appeals decision (1-judge, not for publication); for Brazee: Walter Arthur Piel, Jr.; BiC; Resp.; Reply
Probable cause to arrest found notwithstanding absence of PBT, given erratic driving, admission of drinking 8-10 beers, and failed field sobriety test performance:
¶17 Brazee seems to be asserting that under Renz I and Renz II,
Joseph Stock v. Gaetz, 7th Cir. No. 09-2560, 09/03/2010
Habeas – Limits on Cros-Examination
State court limitation on impeachment of a witness — so as to exclude that portion of a pre-trial conversation containing the defendant’s “self-serving,” thus inadmissible hearsay, statement — wasn’t an unreasonable application of controlling caselaw.
Determination of whether “state interests, including those reflected in the state’s evidentiary rules, may need to bend in order to ensure that defendants have the right to confront the witnesses against them …
Thomas Socha v. Pollard, 7th Cir. No. 09-1733, 09/03/2010
7th Circuit decision; on habeas review of Wis. opinion No. 2005AP2599-CR
Habeas – Filing Deadline – Tolling
The District Court had authority to grant Socha’s pre-filing, pre-deadline request to extend the 28 U.S.C. § 2244(d) deadline for his habeas petition, made on the ground of equitable tolling.
… First, there is no absolute bar imposed by Article III on judicial actions closely connected with a case or controversy that has not yet been filed.
SVP – Retroactivity of Qualifying Offense Legislation; State’s Waiver; Newly Discovered Evidence – Re-normed Actuarial
State v. Christopher Melendrez, 2009AP2070, District 4, 9/2/10
court of appeals decision (3-judge, not recommended for publication); for Melendrez: David R. Karpe; BiC; Resp.; Reply
SVP – Retroactivity of Qualifying Offense Legislation
Third-degree sexual assault wasn’t an SVP-qualifying offense when Melendrez plea-bargained a reduction of 2nd-degree sexual assault to 3rd. But by the time he was released from prison,
Obstructing – Unanimity – Course of Conduct; Obstructing – Sufficiency of Proof
State v. Jennette L. Ellifritz, 2010AP713-CR, District 2, 9/1/10
court of appeals decision (1-judge, not for publication); for Ellifritz: Gary Grass; BiC; Resp.; Reply
Obstructing – Unanimity – Course of Conduct
Because Ellifritz’s actions occurred during a single course of action, over a short (40-second) period of time, instructional failure to require agreement as to which separate act constituted obstructing didn’t violate her right to unanimous verdict;
Reasonable Suspicion – Traffic Stop
State v. Charles G. Jury, 2010AP622-CR, District 2, 9/1/10
court of appeals decision (1-judge, not for publication); for Jury: Eric R. Pangburn; BiC; Resp.
Reasonable suspicion supported stop of vehicle for any or all of the following reasons: dim tail light; necklace hanging from rearview mirror so as to obstruct driver’s view; driving on double yellow line.
Reasonable Suspicion – Continued Detention
City of Oshkosh v. Richard A. Selquist, 2010AP862, District 2, 9/1/10
court of appeals decision (1-judge, not for publication); for Selquist: Walter Arthur Piel, Jr.; BiC; Resp.; Reply
The police had reasonable suspicion to continue temporary detention of Selquist and to request filed sobriety testing while investigating a traffic accident:
¶7 … In reviewing whether the officer’s further investigation and request for field sobriety tests were warranted,