On Point

7th circuit decision

Habeas Review – Inadmissible Evidence – Harmless Error

Error in jury exposure, during deliberations, to inadmissible police report deemed harmless where the report contained merely cumulative information, the trial court gave a curative instruction, and the evidence against Brown was overwhelming.

The standard on direct appeal for measuring reversible error is the familiar Chapman test, whether the error was harmless beyond a reasonable doubt.

certification request; case activity

Budget Repair Bill TRO

This case presents several significant issues involving justiciability and the remedies that are available under Wisconsin’s Open Meetings Law, Wis. Stat. § 19.81 et seq.  As we will explain below, we believe that resolution of these questions will require clarification of the interaction between the Open Meetings Law and a line of cases dealing with the separation of powers doctrine.

State v. Joseph R. Jones, 2010AP2326-CR, District 4, 3/24/11

court of appeals decision (1-judge, not for publication); for Jones: Rebecca J. Vahle; case activity

Reasonable suspicion to believe Jones had committed a (domestic violence-related) crime supported investigative stop.

¶10      Deputy Miller, who was dispatched to aid Curley, observed a woman standing alone on a deserted county road before the sun had risen.  He was aware that she had informed the 911 dispatcher that she had been kicked out of a vehicle and he observed that she was scared and crying.  

State v. Timothy M. Pence, 2010AP1944-CR , District 4, 3/24/11

court of appeals decision (1-judge, not for publication); for Pence: Jessica Jean Giesen, Charles W. Giesen; case activity

Stop of Pence’s vehicle upheld, even if Pence was violating no specific traffic law, on reasonable suspicion he was driving while intoxicated:

¶11      The totality of the circumstances in this case supports the reasonableness of Deputy Miller’s investigative stop. 

State v. Bradley A. Faber, 2010AP2325-CR , District 2, 3/23/11

court of appeals decision (1-judge, not for publication); for Faber: Susan E. Alesia, SPD, Madison Appellate; case activity

¶1        The State of Wisconsin appeals from an order of the circuit court dismissing the criminal charges against Bradley A. Faber.  Faber was issued a pair of citations for operating a motor vehicle while intoxicated (OWI) (First offense) by the City of Delavan in November 2005 and February 2006. 

County of Sheboygan v. John A. Taylor, 2010AP2819, District 2, 3/23/11

court of appeals decision (1-judge, not for publication); for Taylor: Kirk B. Obear, Casey J. Hoff; case activity

Weaving within lane supported reasonable suspicion for OWI stop, State v. Post, 2007 WI 60, 301 Wis. 2d 1, 733 N.W.2d 634 (“repeated weaving by a driver within a single lane does not alone give rise to the reasonable suspicion necessary for a traffic stop”),

Marathon County v. Julie H., 2010AP2157, District 3, 3/22/11

court of appeals decision (1-judge, not for publication); for Julie H.: Dennis Schertz; case activity

Evidence held sufficient to sustain grounds for termination, namely failure to abide by CHIPS conditions. She failed to provide for the child’s protection and safety, in that her live-in fiance, a registered sex offender, refused to participate in treatment; she failed to accept the diagnoses of a mental health professional and seek treatment for same;

Village of Hortonville v. George A. Buchman, 2010AP2836, District 3, 3/22/11

court of appeals decision (1-judge, not for publication); for Buchman: Walter Arthur Piel, Jr.; case activity

Observation of Buchman’s vehicle “operating left of center (line)” established probable cause of a violation of § 346.05 (“shall drive on the right side of the roadway”). This violation “occurs even if the vehicle only momentarily crosses the centerline,” ¶¶7-8.

Docket

Decision below (11th Cir No. 07-15187, 10/26/09)

Question Presented (by Scotusblog):

Whether the Eleventh Circuit properly held that there was no “cause” to excuse any procedural default where petitioner was blameless for the default, the state’s own conduct contributed to the default, and petitioner’s attorneys of record were no longer functioning as his agents at the time of any default.

Cert petition

Scotusblog page

After Maples lost his direct appeal in (Alabama) state court,

Felkner v. Steven Frank Jackson, USSC No. 10-797, 3/31/11

On habeas review under 28 U.S.C. § 2254, the court of appeals failed to give sufficient deference to the state court determination that the prosecutor had race-neutral reasons for striking 2 of 3 black prospective jurors.

The prosecutor struck one juror because she had an MSW, and the prosecutor didn’t like having social workers on the jury;