On Point blog, page 24 of 25
Waiver of Issue: Multiplicity
State v. William Koller, 2001 WI App 253, PFR filed
For Koller: Peter M. Koneazny, SPD, Milwaukee Appellate
Issue: Whether multiplicity claims were waived due to lack of objection until after trial. Holding: Although it isn’t necessary to raise a multiplicity challenge before trial, waiver attaches if “also omitted prior to the time the case was submitted to the jury.” ¶40.
The court’s holding seems to be informed by two notions.
Presentation & Preservation of Argument – Citing Relevant Authority
State v. Debra Noble, 2001 WI App 145, reversed, other grounds, State v. Debra Noble, 2002 WI 64For Noble: Jeff P. Brinckman
Issue: Whether failure to cite relevant authority in support of appellate argument establishes waiver.
Holding:
¶11 … But Noble cites no authority requiring a tape recording, a transcript, or a signed statement to show the falsity of a statement.
Sentencing Review — Waiver of Objection to Reliance on Information
State v. Stanley A. Samuel, 2001 WI App 25, 240 Wis. 2d 756, 623 N.W.2d 565, affirmed, other grounds, 2002 WI 34
For Samuel: Robert R. Henak
Issue: Whether the defendant waived objection to the sentencing court’s reliance on information sealed from the defendant’s inspection.
Holding:
¶42 We accept the State’s waiver argument. First, just because the trial court was in its “imposing sentence”
Double Jeopardy – Multiplicity: Judicial Estoppel Bar to Arguing
State v. Michael Johnson, 2001 WI App 105
For Johnson: David R. Karpe
Issue: Whether defendant’s partially successful trial strategy of defending against two counts of possession of intent to deliver of claiming personal use on one count and denial of any knowledge of the substance in the second count judicially estopped him from arguing on appeal that the two counts are multiplicitous.
Holding:
¶10.
Guilty Plea Waiver Rule – Issues Waived — Ex Post Facto Challenge<
State v. Alfredo Ramirez, 2001 WI App 158, PFR filed 7/11/01
For Ramirez: Elizabeth A. Cavendish-Sosinski
Issue: Whether Ramirez’s guilty plea waived an ex post facto challenge to the charged offense.
Holding: ¶4 n. 4:
We could invoke the guilty plea/waiver rule against Ramirez since he pled guilty to the charge after the trial court rejected his constitutional challenge. See State v.
Rights Waived – Self-Incrimination – Retention of Privilege – NGI Phase
State v. James G. Langenbach, 2001 WI App 222
For Langenbach: Patrick M. Donnelly, SPD, Madison Appellate
Issue: Whether the state may call a defendant to testify, as an adverse witness, at Phase II of an NGI trial, following Phase I guilty plea.
Holding: A guilty plea doesn’t necessarily result in loss of fifth amendment rights: The privilege continues at least until sentencing, ¶9; moreover, the privilege continues during the direct appeal,
Plea Bargains — Breach: Procedural Issues — Preservation by Objection
State v. John D. Williams, 2001 WI App 7, 241 Wis. 2d 1, 624 N.W.2d 164, affirmed without discussing this issue, 2002 WI 1
For Williams: John A. Pray
Issue: Whether the defendant properly preserved objection to a prosecutorial breach of plea bargain.
Holding: ¶13:
(T)he trial court recognized it as an objection and initially agreed with Williams’s attorney. The objection was sufficient.
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.
Waiver of Issue: Dismissal Motion – Ruling Reserved Until After Defense Case
State v. Dennis E. Scott, 2000 WI App 51, 234 Wis. 2d 129, 608 N.W.2d 753
For Scott: Joseph E. Redding
Issue: Whether right to review of a motion to dismiss at the close of the state’s case waived by failing to object to the trial court’s delay in ruling until after the defense presents its case.
Holding: Although “the better practice is for trial courts to decide the motion at the close of the State’s case,”
motion in limine, preservation of issue.
(See also Appeals, Waiver; and Evidence, Objection)
State v. Charles J. Benoit, 229 Wis.2d 630, 600 N.W.2d 193 (Ct. App. 1999).
For Benoit: Meredith J. Ross, LAIP.
Holding: “(A) defendant who makes a motion in limine preserves the right to appeal the issue raised by the motion without renewing the motion at trial,” but only to “the extent that the issue was raised during the motion in limine hearing.”