On Point blog, page 17 of 23
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,
Briefs – Citing Unpublished Opinion
State v. Juan F. Milanes, 2006 WI App 259, PFR filed 12/7/06For Milanes: Joan M. Boyd
Issue/Holding:
¶21 … Further, appellate counsel cited an unpublished case in her opening brief, contrary to Wis. Stat. Rule 809.23(3). This does not appear to be inadvertent, since the citation ends with the parenthetical “(unpublished).” Our supreme court has reasoned that the rule against citing unpublished cases is essential to the reduction of the overwhelming number of published opinions and is a necessary adjunct to economical appellate court administration.
Briefs – Citing Unpublished Decisions – Generally
City of Sheboygan v. Steven Nytsch, 2006 WI App 191, PFR filed 9/11/06
For Nytsch: Chad A. Lanning
Issue/Holding: ¶18 n. 6:
…This court is not so naïve as to believe that unpublished opinions, whether one-judge opinions, per curiam opinions or authored opinions sit in a file serving as dinner for book lice. [A tiny, soft-bodied wingless psocoptera,
Waiver – Closing Argument – Failure to Move for Mistrial
State v. Nicole Schutte, 2006 WI App 135, PFR filed 7/21/06
For Schutte: Donald T. Lang, SPD, Madison Appellate
Issue/Holding: Failure to move for mistrial waived any objection to the prosecutor’s closing argument, ¶60. Nor do the comments rise to the level of plain error necessary to overcome waiver:
¶61 The State points out that, in denying Schutte’s motion for postconviction relief,
Appellate Procedure – Waiver of Argument: Confrontation – Crawford Issue, Trial Held Before Crawford Decided
State v. Jeffrey Lorenzo Searcy, 2006 WI App 8
For Searcy: Joseph L. Sommers
Issue/Holding: Failure to raise a Crawford objection didn’t amount to waiver: “However, Searcy could not have raised at trial a Confrontation Clause claim based on Crawford v. Washington, 541 U.S. 36 (2004), because his December 2002 trial preceded the March 2004 Crawford decision by well over a year.
Guilty Plea Waiver Rule – Generally, Exception for IAC Claim
State v. Juan F. Milanes, 2006 WI App 259, PFR filed 12/7/06
For Milanes: Joan M. Boyd
Issue/Holding:
¶13 A valid guilty or no contest plea waives all nonjurisdictional defenses to a conviction, including constitutional violations. See State v. Riekkoff, 112 Wis. 2d 119, 122-23, 332 N.W.2d 744 (1983). One exception to this rule is the claim of ineffective assistance of counsel under the Sixth Amendment.