On Point blog, page 22 of 24
Judicial Estoppel Bar to Argument — Acceptance of Curative Instruction Bars Appellate Challenge to Its Efficacy
State v. Jonathan J. English-Lancaster, 2002 WI App 74, PFR filed 3/22/02
For English-Lancaster: Steven D. Phillips, SPD, Madison Appellate
Issue: Whether defendant is judicially estopped from appellate challenge to the efficacy of a curative instruction, where he: requested such an instruction, expressed approval of it when it was given, and failed to move for mistrial.
Holding:
¶22. This is classic judicial estoppel.
Appellate Procedure: Challenge to Judicial Substitution Refusal – Failure to Seek Chief Judge’s Review
Barbara R.K. v. James G., 2002 WI App 47
Issue: Whether review of a denied request for substitution of judge is waived by failure to seek review of the denial by the local chief judge.
Holding:
¶9. … The statute then provides: ‘If the judge named in the substitution request finds that the request was not timely and in proper form, that determination may be reviewed by the chief judge of the judicial administrative district …
Review of Waived Issue: Plain Error – Polygraph Evidence
State v. Ronald J. Frank, 2002 WI App 31, PFR filed 1/2/02
For Frank: Jane K. Smith
Issue: Whether testimonial references to an accepted offer to take a polygraph amounted to plain error.
Holding: Plain error, § 901.03(4), requires “obvious” error, and is reserved for likely violations of basic constitutional right: “Frank identified no basic constitutional right implicated, and he concedes, ‘[t]here is no evidence in the record as to the time separation,
Standing Objection Insufficient to Preserve “Haseltine” Error
State v. Carlos R. Delgado, 2002 WI App 38
For Delgado: Richard D. Martin, Diana M. Felsmann, SPD, Milwaukee Appellate
Issue/Holding:
¶11. Under the facts and circumstances of this case, it was incumbent upon defense counsel to police Ortiz’s testimony. This area of the law — what a therapist can and cannot testify to — is complicated. As a result, we hold that when an expert witness is permitted to testify in a sexual assault case as to common characteristics of sexual assault victims,
Waiver of Objection: Stipulation
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.
Briefs – Citing Unpublished Opinion
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.
Reconstruction of Missing Transcript – Application for Search Warrant
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.
Waiver of Issue: Multiplicity
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.
Presentation & Preservation of Argument – Citing Relevant Authority
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.
Warrants – Failure to Make Contemporaneous Record of Telephonic Application – Reconstruction of Application
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.