On Point: C. Briefs/Appendices

State v. Ronald J. Frank, 2002 WI App 31, PFR filed 1/2/02
For Frank: Jane K. Smith

Issue: Whether defendant waived review of objection to admissibility of misconduct evidence by entering into a “Wallerman” stipulation.

Holding: A stipulation under State v. Wallerman, 203 Wis. 2d 158, 552 N.W.2d 128 (Ct. App. 1996) (an element is conceded and the other-act isn’t admitted) waives the issue of admissibility:

¶5.

State ex rel. Michael J. Gendrich v. Litscher, 2001 WI App 163

Issue: Whether an unpublished decision may be cited for its “persuasive” value.

Holding: ¶7 n. 6:

We acknowledge that the cited order from the Seventh Circuit is an ‘unpublished opinion.’ However, the Seventh Circuit’s rule only prohibits citation of an ‘unpublished opinion’ as precedent in any federal court in that circuit. 7th Cir.

State v. Cherise A. Raflick, 2001 WI 129
For Raflik: Michael J. Fitzgerald, Dean A. Strang

Issue/Holding:

¶1. This case requires us to decide whether suppression is the proper remedy when a telephonic application for a search warrant is not recorded in accordance with Wis. Stat. § 968.12(3)(d)1, and when the factual basis for the warrant is reconstructed in an ex parte hearing after the warrant has been executed.

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.

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.

State v. Cherise A. Raflick, 2001 WI 129
For Raflik: Michael J. Fitzgerald, Dean A. Strang

Issue/Holding:

¶1. This case requires us to decide whether suppression is the proper remedy when a telephonic application for a search warrant is not recorded in accordance with Wis. Stat. § 968.12(3)(d)1, and when the factual basis for the warrant is reconstructed in an ex parte hearing after the warrant has been executed.

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.

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.

Mogged v. Mogged, 2000 WI App 39, 233 Wis. 2d 90, 607 N.W.2d 662

Issue/Holding: Brief adopting “vituperative tone” and making misleading, unsupported arguments violates Rules of Professional Conduct and is stricken. ¶¶21-24. (Note that the court cites 7th Circuit caselaw, ¶22, suggesting that decisions from that body are very pertinent.)

Appellate briefs containing personal attacks sufficiently inflammatory subject the author to the range of sanctions avaialble under the code of professional responsibility,

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,”