On Point blog, page 3 of 3
Court of appeals affirms reduction of sentence credit, scolds counsel for appellant and respondent
State v. Lance P. Howard, 2017AP677-688-CR, 2/21/18, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)
How to irritate the court of appeals. If you haven’t figure that out yet, read this opinion.
State v. Frederick S. Smith, 2015AP756-CR, petition granted 1/9/2017
Review of a per curiam court of appeals decision; case activity (including briefs)
Issues (from the petition for review):
1. When a police officer performs a lawful traffic stop, is it reasonable for the officer to make contact with the driver to ask for the driver’s name and identification and to explain the basis for the stop, even if the reasonable suspicion supporting the stop has dispelled by the time the officer does so?
2. When an officer is unable to request a driver’s name and identification and explain the basis for a traffic stop because, as in this case, the driver indicates that the driver’s side window and door are both broken, is the officer then permitted to open the passenger’s side door to achieve that goal?
State v. Gary F. Lemberger, 2015AP1452-CR, petition for review granted 10/11/2016
Review of an unpublished court of appeals decision; case activity (including briefs); petition for review
Issues (composed by On Point)
(1) May a prosecutor argue that a defendant’s refusal to submit to a breathalyzer test shows consciousness of guilt?
(2) When a circuit court denies a postconviction motion based on arguably inapplicable case law, must the defendant ask the circuit court to reconsider its ruling in order to preserve for appeal the claim that the case law doesn’t apply?
State’s failure to respond to defense argument results in reversal of conviction
State v. Charles David Sislo, 2015AP73-CR, 7/6/16, District 3 (1-judge opinion; ineligible for publication); case activity (including briefs)
Wow! This “defense win” is gift wrapped for appellate lawyers. Sislo appealed the circuit court’s denial of his motion to suppress the fruits of his arrest, arguing that the police had no probable cause to arrest him even considering the collective knowledge doctrine. The State’s response brief apparently “mischaracterized” Sislo’s argument, and this did not sit well with the court of appeals:
Court of appeals ducks Fourth Amendment question
State v. Gary F. Lemberger, 2015AP1452-CR, 4/14/2016, District 4 (one-judge decision; ineligible for publication), petition for review granted 10/11/2016, affirmed, 2017 WI 39; case activity (including briefs)
A breathalyzer test is a Fourth Amendment search, and state case law holds that the state may not invite a jury to view a defendant’s refusal to consent to a search as evidence of guilt. So, can a prosecutor argue that a defendant’s refusal to take a breathalyzer shows his guilt? Don’t look to this case for an answer.
Pro se appeal doomed by inadequate briefing, failure to raise claims in trial court
State v. Susan P. Resch, 2015AP51-CR, District 4, 8/20/15 (one-judge decision; ineligible for publication); case activity (including briefs)
¶2 Resch fails to sufficiently develop any legal argument based on concrete references (much less based on proper citations) to pertinent portions of the record and the application of governing legal authority, and I reject her arguments on that basis. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (court of appeals may decline to review inadequately developed issues). Any other approach would require me to abandon my neutral judicial role by becoming Resch’s advocate.
Court scolds State for shoddy advocacy, holds alleged “stop” was actually an arrest without probable cause
State v. Thomas J. Anker, 2014 WI App 107; case activity
If a conservation warden shouted “you’re under arrest,” ordered you to stop walking, forcibly handcuffed you, and restrained you in his car until he could turn you over to investigating authorities, would you think you were under arrest or simply “temporarily detained”? The State, with a straight face, claimed these facts showed a Terry stop. The court of appeals, with a stern tone, rebuked the State and sharply criticized its brief.
Defendant can’t make hay with claims the trial court erred by excluding certain evidence and rejecting his proposed jury instructions
State v. Richard P. Selenske, 2013AP1403-CR, District 3, 11/5/13; court of appeals decision (1-judge; ineligible for publication); case activity
A dispute about a contract for the purchase of standing hay grew into a misdemeanor theft charge when Selenske, the farmer who owned the hay fields, would not let Kern, the farmer who purchased the hay, pick up the last of the bales. The bare-bones contract Selenske wrote didn’t include a completion date,