On Point blog, page 15 of 23
Waiver – As Rule of Judicial Administration
State v. Michael Scott Long, 2009 WI 36, affirming in part and reversing in part unpublished opinion
For Long: Joseph L. Sommers
Issue/Holding:
¶43 Long did not advance this statutory interpretation argument at the circuit court or at the court of appeals. Normally, under such circumstances, we would conclude that an issue neither raised nor briefed is waived. Long’s sole recourse would be to file a motion for post-conviction relief,
Waiver of Issue, Generally – Authority to Review Despite Lack of Contemporaneous Objection
State v. Michael Lee Washington, 2009 WI App 148
For Washington: Christopher Lee Wiesmueller
Issue/Holding: ¶1 n. 1:
The State asserts that Washington is precluded from making this argument on appeal because he did not object when the prosecutor made his recommendation before the circuit court. Generally, the failure to object is a “dispositive infirmity.” State v. Grindemann,
Review of Waived Issue: Plain Error – Generally
State v. James D. Lammers, 2009 WI App 136, PFR filed 9/16/09For Lammers: Amelia L. Bizzaro
Issue/Holding:
¶12 “Plain error” means a clear or obvious error, one that likely deprived the defendant of a basic constitutional right. State v. Frank, 2002 WI App 31, ¶25, 250 Wis. 2d 95, 640 N.W.2d 198 (Ct. App. 2001). Wisconsin Stat. § 901.03(4) recognizes the plain error doctrine,
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,
Issue Waiver: Jury Instruction – Failure to Object to Trial Court Response to Jury Question
State v. Christopher F. Becker, 2009 WI App 59, PFR filed 5/8/09
For Becker: Jeremy C. Perri, SPD, Milwaukee Appellate
Issue/Holding: By failing to object, defendant waived right to challenge judicial response to deliberating jury’s question, notwithstanding conceded unanimity problems in the response:
¶15 Nevertheless, we must agree with the State and hold that Becker waived his argument that the trial court erroneously exercised its discretion in answering the jury’s question in the manner it did.
“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.”
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 ___,
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,
Briefs – Factual Recitation – Need for Completeness, Accuracy
State v. Ellen T. Straehler, 2008 WI App 14
For Straehler: Daniel P. Fay
Issue/Holding: ¶2 n. 4:
We appreciate the attorney general’s thorough recitation of the facts and draw freely from it. Both the district attorney and the attorney general submitted response briefs and we refer to their position collectively as the State’s. Straehler’s recitation of facts is incomplete, lacks citation to the record and cites to documents outside of the record.