On Point

State v. Jason L. Sedahl, 2010AP1097-CR, District 3, 10/5/10

court of appeals decision (1-judge, not for publication); for Sedahl: William A. Schembera; BiC; Resp.

The trial court erred in dismissing a pending charge on the theory that the charge (OWI) resulted from police failure to perform their community caretaker function (preventing him from driving):

¶12      …  No Wisconsin case holds that the doctrine places an affirmative duty on police to intercede and take a person into preventative detention prior to the commission of a crime. 

court of appeals decision (1-judge, not for publication); for Cortes: Timmothy J. Lennon; BiC; Resp.; Reply

State v. Rolando S. Cortes, 2010AP621-CR, Distric 3, 10/5/10

The officer had reasonable suspicion to perform a traffic stop:

¶7        Conley’s inference that Cortes was trying to elude or evade police was reasonable given the totality of the circumstances.  Cortes pointed at Conley’s cruiser,

decision below: unpublished; for Harbor: Joseph E. Redding; court of appeals briefs: BiC; Resp.; Reply

Issues (from Table of Pending Cases):

Whether a defendant presented a new factor entitling sentence modification (See State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989).

Whether a defendant demonstrated ineffective assistance of counsel under Strickland v.

decision below: unpublished; prior On Point post; for Burris: Byron C. Lichstein

Issue (from Table of Pending Cases):

Was the trial court’s supplemental jury instruction that was issued in response to a question from the jury and that quoted verbatim from a Supreme Court opinion an impermissibly misleading instruction under the standards established by State v. Lohmeier, 205 Wis. 2d 183,

decision below: unpublished; prior On Point post; for Rhodes: John J. Grau

Issue (from Table of Pending Cases):

Whether a criminal defendant’s constitutional right to confront a witness in cross-examination was infringed, and, if so, whether the infringement was harmless error.

Homicide case, tried on State’s theory Rhodes had motive to kill victim for beating Rhodes’ sister; court of appeals reversed because trial judge cut off cross-examination that Rhodes did not react violently in response to prior harm inflicted by victim on sister.

decision below:  unpublished summary disposition; for Funk: Michele Anne Tjader

Issue (from Table of Pending Cases):

Whether a juror was subjectively and/or objectively biased under the test set forth in State v. Delgado, 223 Wis. 2d 270, 588 N.W.2d 1 (1999).

Briefs, appellate decision, petition for review: none is posted, so you can’t readily tell what the case is about. CCAP indicates that this is a sexual assault case and that the judge granted new trial because a juror failed to reveal on voir dire she’d been a sexual assault victim herself.

federal habeas decision (pdf file: here), granting relief in State v. Fischer, 2010 WI 6; respondent’s Rule 59 motion to amend judgment denied 1/7/11

Habeas Review – Right to Present Defense – Expert Opinion, Based PBT

Preventing Fisher from adducing expert opinion he wasn’t driving with a prohibited alcohol content based on analysis of his PBT, because of the absolute evidentiary bar under § 343.303  on PBTs,

State v. Precious M. Ward, 2009AP2085-CR, District 1, 10/5/10

court of appeals decision (3-judge, not recommended for publication); for Ward: Lew A. Wasserman; BiC; Resp.; Reply

Hearing-Impaired Juror

Juror who was hearing impaired, but not completely so; who could lip read; and for whom the trial judge took precautions to make sure he could hear everything, was qualified to sit.

State v. David J. Bucknell, 2010AP833-CR, District 3, 9/30/10

court of appeals decision (1-judge, not for publication); for Bucknell: Rebecca M. Coffee; BiC; Resp.; Reply

A prior conviction, used to enhance a pending charge, may be collaterally attacked on the basis of denial of the 6th amendment right to counsel. Because “it is clear from Bucknell’s testimony at the hearings on his motion that he was aware of his right to be represented by an attorney at the prior proceeding and that he knowingly and intelligently relinquished that right,”

Village of Marathon City v. Jenny L. Nowak, 2010AP462, District 3, 9/30/10

court of appeals decision (1-judge, not for publication); Resp. Br.

¶11      The five-factor Hanson/Kramer test is used to determine the accuracy of moving radar.[4] See Washington Cnty. v. Luedtke, 135 Wis. 2d 131, 133 n.2, 399 N.W.2d 906 (1987).  “If there is compliance with the Hanson/Kramer criteria,