On Point

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court of appeals decision (1-judge, not for publication); for Ellifritz: Gary Grass; BiC; Resp.; Reply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;

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court of appeals decision (1-judge, not for publication); for Jury: Eric R. Pangburn; BiC; Resp.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.

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court of appeals decision (1-judge, not for publication); for Selquist: Walter Arthur Piel, Jr.; BiC; Resp.; Reply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,

State v. Adamm D.J. Linton, 2010 WI App 129; for Linton: Joseph E. Redding; BiC; Resp.; Reply

Interrogation – Ambiguous Request for Counsel

Initial custodial questioning terminated when Linton invoked his right to silence. During subsequent re-interrogation, Linton said, “when I asked for a lawyer earlier, why wasn’t he appointed to me?” The detective indicated that if Linton was asking for a lawyer then the police would “just stop talking to”

John M. Stephenson v. Levenhagen, 7th Cir No. 09-2924, 08/26/2010

7th Cir decision; petition for rehearing denied 1/14/11, 3 dissents from denial of en banc review

Habeas – Effective Assistance – Stun Belt

Counsel’s failure to object to placement of stun belt on Stephenson during trial was held by the state court to be deficient: accepting that conclusion (albeit with apparent reluctance), the federal court holds on habeas review that the deficiency wasn’t prejudicial.

7th Cir. decision; Order denying rehearing and amending opinion, 10/10/15

Habeas – Voluntary Statement – Juvenile

State court determination that juvenile’s custodial statement to police was voluntary wasn’t objectively unreasonable., notwithstanding his age (15), borderline intellectual functioning and lack of criminal background. “(I)t is the totality of the circumstances underlying a juvenile confession, rather than the presence or absence of a single circumstance, that determines whether or not the confession should be deemed voluntary.”

State v. Nick J. W., 2009AP2030-CR, District 4, 8/26/10

court of appeals decision (3-judge, not recommended for publication); for Nick J.W.: Joseph L. Sommers; BiC; Resp.; Reply

Incest – Sufficiency of Evidence

The 16-year-old complainant’s testimony that her biological father had sex with her sufficed to prove the crime of incest, the court rejecting the defense argument that, because she didn’t look at the perpetrator,

State v. Donovan L. Lewis, 2009AP2531-CR, District 4, 8/26/10

court of appeals decision (3-judge, not recommended for publication); for Lewis: Shelley Fite, SPD, Madison Appellate; BiC; Resp.; Reply

Defense access to a complainant’s privileged counseling records requires first convincing the trial court to conduct an in camera inspection to see if the records contain information material to innocence. And that requires showing a reasonable likelihood the records contain non-cumulative material information.

State v. David E. Steinke, 2009AP3207-CR, District 4, 8/26/10

court of appeals decision (1-judge, not for publication); for Steinke: Cody Wagner; BiC; Resp.; Reply

Driving with a prohibited alcohol content of .08 or more, second offense, is a crime and therefore subject to beyond-reasonable-doubt burden of proof. Sitting as trier of fact in a bench trial, the circuit arguably misapprehended the burden as greater weight of the credible evidence,

Waukesha County DH&HS v. Michelle P., 2009AP1087, District 2, 8/25/10

court of appeals decision (1-judge, not for publication); for Michelle P.: Eileen A. Hirsch, SPD , Madison Appellate

Authority of the local department to suspend visitation without judicial approval is an “interesting” issue, but one that need not be reached under these facts because the error if any was harmless:

¶11 We point out that, under Wis.