On Point blog, page 19 of 25
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.
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 Rule and Judicial Estoppel: Inapplicable to Mere Acquiescence to Ruling Subsequently Challenged
State v. Frederick W. Rushing, 2007 WI App 227, PFR filed 10/25/07
For Rushing: Randall E. Paulson, SPD, Milwaukee Appellate
Issue/Holding: The State’s silent acquiescence to judicial action (sua sponte withdrawal of a guilty plea) didn’t work judicial estoppel bar to mounting subsequent challenge to that ruling, ¶14.
Judicial Estoppel – Objection to PSI
State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear
Issue/Holding:
¶6 Thexton next claims that the circuit court erred in considering the PSI from his prior conviction. On realizing that the PSI in this case had been prepared with extensive reference to the PSI from Thexton’s prior conviction, Thexton’s attorney objected to the circuit court that he could not adequately respond to it because he did not have access to the prior PSI.
Appellate Procedure: Respondent’s Waiver
State v. Roberto Vargas Rodriguez, 2007 WI App 252, PFR filed 11/1/07; on remand from supreme court, and affirming, 2006 WI App 163
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding:
¶12 Generally, we do not apply waiver against a respondent who is seeking to uphold a trial court ruling. See State v. Holt,
Waiver of Issue: Jury Instruction – Failure to Object to Limiting Instruction
State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.
Issue/Holding: Failure to object to the wording of a limiting instruction (limiting jury’s use of certain evidence to impeachment rather than substantive evidence of guilt) waived the right to challenge its efficacy, ¶¶34-36.
The court possesses discretionary authority to review and reverse in the interest of justice but “Cockrell does not contend that the real controversy was not tried because of the challenged jury instruction,” ¶36 n.
Waiver of Issue: Judicial Communications with Jury during deliberations – Defendant’s Right to Presence
State v. Lionel N. Anderson, 2006 WI 77, reversing 2005 WI App 238
For Anderson: Harry R. Hertel
Issue/Holding:
¶36 The parties agree with the court of appeals that the circuit court’s communications with the jury outside the presence of the defendant is error, violating the defendant’s constitutional and statutory right to be present. We agree with the parties.…
¶63 (W)hatever the requirement for an accused’s waiver of the right to be present when a circuit court communicates with the jury,