On Point blog, page 18 of 25
“Forfeiture” (Compared to “Waiver”) of Right to Public Trial
State v. Dhosi J. Ndina, 2009 WI 21, affirming 2007 WI App 268
For Ndina: Richard L. Kaiser
Issue/Holding: (Generally:)
¶29 Although cases sometimes use the words “forfeiture” and “waiver” interchangeably, the two words embody very different legal concepts. “Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.”
Guilty Plea Waiver Rule – Generally, Authority to Ignore
State v. Benjamin D. Tarrant, 2009 WI App 121
For Tarrant: Susan E. Alesia, SPD, Madison Appellate
Issue/Holding:
¶6 Waiver. Before addressing the merits, the State argues that Tarrant’s no contest plea constitutes a waiver of all nonjurisdictional defects and defenses. State v. Multaler, 2002 WI 35, ¶54, 252 Wis. 2d 54, 643 N.W.2d 437.
Forfeited Issue: Deferred Prosecution Agreement Argument
State v. Chase E. Kaczmarski, 2009 WI App 117
For Kaczmarski: Harold L. Harlowe, David M. Gorwitz
Issue/Holding:
¶7 Forfeiture is a rule of judicial administration, and whether we apply the rule is a matter addressed to our discretion. [3] See Ford Motor Co. v. Lyons, 137 Wis. 2d 397, 417, 405 N.W.2d 354 (Ct. App. 1987).We generally do not consider arguments not raised in the circuit court.
Forfeited Issue – Failure of Court Reporter to Take Down Tape as Played to Jury
State v. Garrett L. Huff, 2009 WI App 92, PFR filed 6/3/09
For Huff: Jeffrey W. Jensen
Issue/Holding:
¶14 As we have seen, the trial court did not require its court reporter to take down the tapes as they were being played. This was error. See State v. Ruiz-Velez, 2008 WI App 169, ___ Wis. 2d ___,
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,
Confrontation – Generally: Statements Made by Prosecutor and Judge in Transcript Read to Jury
State v. Donald W. Jorgensen, 2008 WI 60, reversing unpublished decision
For Jorgensen: Martha K. Askins, SPD, Madison Appellate
Issue: The present convictions stemmed from Jorgensen showing up for an otherwise unrelated hearing intoxicated; without objection, the prosecutor obtained admission of that hearing’s transcript, which the trial court read to the jury: is Jorgensen entitled to relief on the ground of violation of right to confrontation,
No Waiver Bar, Collateral Attack Based on Newly Discovered Evidence
State v. Audrey A. Edmunds , 2008 WI App 33; prior history: State v. Edmunds, 229 Wis. 2d 67, 598 N.W.2d 290 (Ct. App. 1999), habeas relief denied, Edmunds v. Deppisch, 313 F.3d 997 (7th Cir. 2002)
For Edmunds: Keith A. Findley, UW Law School
Issue/Holding: Presentation of expert testimony to establish, under a theory of newly discovered evidence,
Waiver – Taser Device Worn by Defendant, Failure to Raise Objection
State v. Kevin M. Champlain, 2008 WI App 5, (AG’s) PFR filed 1/4/08
For Champlain: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
¶15 The State first argues that Champlain has waived the armband issue. The State contends that Champlain cannot not be heard to complain about the jury seeing the armband device when he himself declined Strand’s offer of a long-sleeved shirt before he was brought into the courtroom for his trial.
Waiver of Argument
State v. Thomas C. Burton, 2007 WI App 237
For Burton: Timothy A. Provis
Issue/Holding:
¶11 As to the lack of contemporaneous objection, we note that Burton argued strenuously before Warmington testified that his proposed testimony would be irrelevant and prejudicial, and asked that he be subjected to a voir dire outside the jury’s presence. The circuit court denied Burton the requested voir dire [1] and further ruled that Warmington could offer testimony going to the truthfulness of the witnesses and to Burton’s intent.
Waiver of Argument – Failure to Cite Pertinent Authority in Trial Court Doesn’t Alone Amount to Failure to Preserve Issue
State v. Heather A. Markwardt, 2007 WI App 242, PFR filed 11/29/07
For Markwardt: Richard Hahn
Issue/Holding:
¶13 … The State’s citation for the first time on appeal to Davis and Ross is not a new argument but citation to additional authority. Citation to additional authority and legal analysis on appeal does not constitute “new argument” or advancement of a new theory on appeal.