On Point blog, page 11 of 17
Other-Acts Evidence: Criminal-Enterprise Activity; Exculpatory Evidence: Disclosure in Fact Made; Appellate Procedure: Incomplete Record Supports Trial Decision
State v. Michael Anthony Lock, 2012 WI App 99 (recommended for publication); case activity
Other-Acts Evidence
Lock was tried and convicted for homicide, kidnapping and possession with intent to deliver. The State elicited testimony from numerous witnesses to the effect that Lock headed a vast criminal enterprise, of which these crimes were a part in that the two homicide victims were drug dealers, whom Lock killed (or ordered killed) over drug money.
Miranda – “Custodial Interrogation”; Harmless Error
State v. Randy L. Martin, 2012 WI 96, reversing unpublished decision; case activity
Miranda – “Custodial Interrogation”
Martin was arrested for disorderly conduct and handcuffed at the scene of an otherwise unrelated incident (¶6, id. n. 6). Search of his car yielded a gun. When an officer asked him, Martin denied ownership. The officer then prepared to arrest Henry, Martin’s companion,
Sufficiency of Evidence: Standard of Review – Possession with Intent to Deliver; Right to Jury Trial – Apprendi – Harmless Error
State v. Roshawn Smith, 2012 WI 91, reversing in part, affirming in part unpublished decision; case activity
Standard of Review: Sufficiency of Evidence
¶29 We understand Smith’s central argument regarding the standard of review on the evidentiary question to be summed up in the proposition that a jury verdict of guilt[9] must be reversed on appeal if “[t]he inferences that may be drawn from the circumstantial evidence are as consistent with innocence as with guilt.”
Appellate Procedure: Waived Objection to Jury Instruction; Inaccuracy in Witness’s Accurate Criminal Record: Harmless Error; Defendant’s Right Not to Testify: Retrospective Hearing – State Satisfied Burden of Proof
State v. Joel Joseph Lobermeier, 2012 WI App 77 (recommended for publication); for Lobermeier: Andrea Taylor Cornwall, SPD, Milwaukee Appellate; case activity
Appellate Procedure – Waiver – Jury Instructions
Failure to object to a jury instruction amounts to a failure to preserve for review an asserted objection, which must therefore be reviewed in the context of ineffective assistance of counsel. Nonetheless, failure to object to a “material variance”
State v. Gerald D. Taylor, 2011AP1030-CR, rev. granted 3/15/12
court of appeals certification; for Taylor: Shelley Fite, SPD, Madison Appellate; case activity; prior post
Issue (from Certification):
Whether understating the potential penalty during a plea colloquy can properly be deemed harmless error, and if so, where in the analytical framework of Bangert such a determination should be made.
The guilty plea court misinformed Taylor that the maximum he faced was 6,
Charging Document: Notice of Nature of Charge – Element of Force Omitted; Sentencing: Inaccurate Information – Misperceived Mandatory Minimum
State v. Lamont L. Travis, 2012 WI App 46 (recommended for publication), petition for review granted, 9/18/12; case activity
For unsuccessfully trying to put his hand down his 10-year-old niece’s pants, Travis was charged with, and pleaded guilty to, attempted first-degree sexual assault of a child under age 12, §§ 939.32, 948.02(1)(d). However, that particular form of assault requires use or threat of use of force and violence,
State v. Gerald D. Taylor, 2011AP1030-CR, District 3/4, 2/9/12, review granted
court of appeals certification; for Taylor: Shelley Fite, SPD, Madison Appellate; case activity; review granted, 3/15/12
Guilty Pleas – Plea Colloquy
Certified Issue:
Whether a plea colloquy’s understating the potential penalty is subject to harmless error analysis, such that if the subsequently-imposed sentence doesn’t exceed the misadvised maximum, plea-withdrawal isn’t supported.
The details: Taylor was charged as a repeater with an offense carrying an underlying maximum of 6 years with the enhancer adding a potential 2 years.
Juror Bias / Disqualification – Waiver of Issue: Use of Peremptory to Remove Juror
State v. Sharon A. Sellhausen, 2012 WI 5, reversing 2010 WI App 175; for Sellhausen: Byron C. Lichstein; case activity
The trial judge’s daughter-in-law was part of the jury pool; Sellhausen didn’t seek her removal for cause, but used a peremptory to strike her, which rendered harmless any possible error in the trial judge sua sponte failing to remove the juror for cause.
State v. Dennis D. Lemoine, 2010AP2597-CR, rev. granted 1/25/12
on review of unpublished opinion; for Lemoine: Donna L. Hintze, Katie R. York, SPD, Madison Appellate; case activity
Involuntary Statement – Coercion
Issue (composed by On Point):
Whether Lemoine’s in-custody statement was involuntary given the following police tactics:
- promising that in exchange for the “true story” he would not go to jail that night;
- telling him that he would not be able to contact an attorney while at the jail;
Guilty Plea Colloquy: “Hampton” Advisal – No Manifest Injustice
State v. James Lee Johnson, 2012 WI App 21 (recommended for publication); for Johnson: Melinda A. Swartz, SPD, Milwaukee Appellate; case activity
The guilty plea colloquy was defective, in that it failed to advise Johnson that the trial court wasn’t obliged to follow the terms of the plea bargain (here: to dismiss and read-in a count), contrary to State v. Hampton,