On Point blog, page 9 of 11
Ineffective assistance of counsel — failure to object to or present evidence. Sentencing — exercise of discretion
State v. Danny F. Anton, 2012AP1165-CR, District 2, 4/23/13; court of appeals decision (not recommended for publication); case activity
Ineffective assistance of counsel
In a fact-specific discussion that precludes summary here, the court of appeals holds Anton’s trial attorney was not ineffective for: failing to object to testimony about telephone calls between Anton and a detective, as the evidence was not prejudicial (¶¶10-13);
Traffic stop – reasonable suspicion to conduct stop based on anonymous tip
State v. Bryant A. Preinfalk, 2012AP2060-CR, District 4, 3/14/13; court of appeals decision (1-judge, ineligible for publication); case activity
The stop of Preinfalk’s car was lawful because in light of observations made by the officer, the anonymous tip provided reasonable suspicion to conclude the car was occupied by persons who had been involved in a fight at the Sidelines Bar:
¶11 It is not disputed that the tip in this case was anonymous.
Evidence sufficent to show parent/child go-kart ride amounts to physical abuse of child; ditto as to parent’s decision to treat injuries at home rather than seek medical attention
State v. Nicholas M. Gimino, 2012AP1498-CR, District II/IV, 3/7/13 (unpublished); case activity.
While this decision is not recommended for publication, it highlights a very touchy subject–when does conduct many parents engage in rise to the level of physical abuse of a child? The answer may surprise you.
Here’s what happened. Gimino took his 2-year-old daughter for a ride on a motorized go-kart having no sides or roof.
Appellate Briefs
State v. Jeremiah R. Connour, 2011AP1489-CR, District 3, 7/31/12
court of appeals decision (not recommended for publication); case activity
¶3 n. 2:
Connour’s thirty-eight-page statement of the case includes primarily verbatim Q & A trial testimony, but nonetheless omits relevant evidence necessary to address his postconviction claims. Most of the remainder of Connour’s recitation of the “facts” inappropriately consists of several pages of argument.
Appellate Procedure – Sanctions and Inadequate Argumentation
State v. Michael E. Ballenger, 2010AP664-CR, District 3, 11/16/10
court of appeals decision (1-judge, not for publication); for Ballenger: Ryan D. Lister; Ballenger BiC; State’s Resp.
Appellate Procedure – Sanction
Ballenger’s brief’s appendix does not include any portion of the suppression motion hearing transcript—neither deputy Campbell’s testimony nor the court’s factual findings or reasoning for denying the motion. Yet, as required by rule,
Search-Incident: Automobile; Sufficiency of Evidence: Manufacturing THC
State v. Timothy Charles Bauer, 2010 WI App 93; for Bauer: Catherine M. Canright; BiC; Resp.; Reply
Search-Incident – Automobile
By failing to address Bauer’s Arizona v. Gant argument, instead relying solely on State v. Fry, 131 Wis. 2d 153, 174, 388 N.W.2d 565 (1986), the States’ argument compels the court to reverse the suppression order:
¶9 Here,
State’s Waiver – Escalona-Naranjo (Serial Litigation) Argument
State v. James D. Miller, 2009 WI App 111, PFR filed 8/3/09
Pro se
Issue/Holding: State failure to argue, in the trial court, that Miller’s 974.06 motion was barred under Escalona-Naranjo waived the argument on appeal:
¶25 We conclude that application of the waiver rule is appropriate here, and therefore decline to address the State’s Escalona argument. Waiver is a rule of judicial administration,
Briefs – Content – Tone: Ad Hominem
Bettendorf v. St. Croix County, 2008 WI App 97
Issue/Holding: An appellate “brief contain(ing) a collection of attacks against [opposing counsel] that are nothing more than unfounded, mean-spirited slurs” subjects its author to ethical sanction:
¶17 “A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.” (Emphasis added.) Preamble, SCR ch. 20 (2005-06).
Briefs — Argument — Pinpoint Citations for Cited Caselaw
State v. Darren A. Kliss, 2007 WI App 13
For Kliss: Michael C. Witt
Issue/Holding: ¶6 n. 4:
We observe that Kliss, in his appellate brief, is inconsistent in his use of pinpoint citations for the case law he invokes to support his legal contentions. Wisconsin Stat. Rule 809.19(1)(e) requires the appellant to support its contentions with citations conforming to the Uniform System of Citation and Supreme Court Rule 80.02.
Briefs – Argument – Concession of Error by State
State v. Gary A. Johnson, 2007 WI 32, affirming 2006 WI App 15For Johnson: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding:
¶14 … The State concedes before this court, as it did in the court of appeals, that Johnson did not freely consent to the search of his vehicle. [4] …
[4] The dissent faults the State for making this concession.