On Point blog, page 1 of 1
No error where judge reached verdict in bench trial while jury out on remaining count
State v. Robert Mario Wheeler, 2016AP55-CR, 2/21/2017, District 1 (not recommended for publication); case activity (including briefs)
Robert Wheeler was tried for reckless injury and being a felon in possession of a gun arising out of a single shooting incident. To keep the jury from hearing about his status as a felon, the parties stipulated that he was and agreed that the gun possession charge would be decided by the court. Wheeler’s counsel specifically noted the possibility that the two counts could be decided differently, given the different factfinders. (¶5).
Trial counsel’s failure to object to jury instruction deprives appellant of right to challenge sufficiency of evidence
State v. Addison F. Steiner, 2013AP2629-CR, district 4, 10/16/14 (not recommended for publication); case activity
This case raises an issue that even the court of appeals deemed to be of first impression. Does §948.20, which criminalizes abandonment of a child, require an intent to abandon a child permanently, or is leaving a child alone for 1 or 2 hours enough? If the latter, then how is “child abandonment” different from “child neglect” under §948.21? The court of appeals refused to address the issue for reasons that should trouble anyone challenging the sufficiency of the evidence to support a jury verdict.
Closing Argument – Reference to Defendant’s Failure to Testify
State v. Carmen L. Doss, 2008 WI 93, reversing 2007 WI App 208
For Doss: Robert R. Henak
Issue/Holding: Closing argument remarks addressed to Doss’s failure to explain missing funds did not amount to a comment on her failure to testify:
¶81 …
[F]or a prosecutor’s comment to constitute an improper reference to a defendant’s failure to testify,
Waiver: Closing Argument – Failure to Move for Mistrial – Rule Inapplicable Where Objection Denied
State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.
Issue/Holding: ¶44, n. 14:
The State also argues that Cockrell waived his right to object on this ground because he did not move for a mistrial. We agree with Cockrell that the case the State relies on for this argument, State v.
Waiver – Closing Argument – Failure to Move for Mistrial
State v. Nicole Schutte, 2006 WI App 135, PFR filed 7/21/06
For Schutte: Donald T. Lang, SPD, Madison Appellate
Issue/Holding: Failure to move for mistrial waived any objection to the prosecutor’s closing argument, ¶60. Nor do the comments rise to the level of plain error necessary to overcome waiver:
¶61 The State points out that, in denying Schutte’s motion for postconviction relief,
Waiver – Closing Argument: Failure to Move for Mistrial
State v. Xavier J. Rockette (II), 2006 WI App 103, PFR filed 6/29/06 ( prior unrelated appeal involving same defendant, different case: 2005 WI App 205)
For Rockette: Timothy A. Provis
Issue/Holding: Failure to move for mistrial waives objection to closing argument, ¶28, citing State v. Dale H. Davidson, 2000 WI 91, ¶86, 236 Wis.
Closing Argument — Failure to Move for Mistrial
State v. Dale H. Davidson, 2000 WI 91, 236 Wis. 2d 537, 613 N.W.2d 606, reversing State v. Davidson, 222 Wis. 2d 233, 589 N.W.2d 038
For Davidson: Jerome F. Buting & Pamela Moorshead
Issue: Whether objection to the prosecutor’s closing argument was waived by failing to move for mistrial.
Holding: Although Davidson objected to the closing argument, his failure to also move for mistrial waived the objection.