On Point: 1. Appeals

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.

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 …

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,

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,

State v. Darin W. Baratka, 2002 WI App 288, PFR filed 10/20/02
For Baratka: Michael C. Witt

Issue/Holding:

¶7. Application of the implied consent statute to an undisputed set of facts is a question of law that we review independently. Similarly, reconciling constitutional considerations of due process and equal protection with the requirements of the implied consent statute involve questions of law, which we also review independently.

State v. Jimmie Davison, 2002 WI App 109, reversed on other grounds, 2003 WI 89
For Davison: Keith A. Findley, UW Law School

Issue/Holding: A guilty plea doesn’t waive a facially valid multiplicity claim. ¶13.

The supreme court took review on this threshold issue: “First, does a criminal defendant who pleads guilty to several crimes in a negotiated plea agreement waive the right to raise a multiplicity claim against one of the resulting convictions?” ¶2.

State v. Harold C. Mikkelson, 2002 WI App 152
For Mikkelson: Michael Yovovich, SPD, Madison Appellate

Issue: Whether the state waived an appellate argument in opposition to suppression by not raising it at the suppression hearing.

Holding:

¶14 “The waiver rule serves several important objectives. Raising issues at the [circuit] court level allows the …. court to correct or avoid the alleged error in the first place,

State v. Dale H. Chu, 2002 WI App, PFR filed 4/23/02
For Chu: Andrew Shaw

Issue/Holding: Evidence held sufficient, despite disagreement of experts on how fire was started; the jury was required to determine whether defendant intentionally started the fire, not specifically how it was set.

¶44      Chu may instead be arguing that the verdicts should be overturned because the State’s experts could not agree on the precise method of starting the fire,

State v. Jimmie Davison, 2002 WI App 109, overruled on other grounds, 2003 WI 89, ¶111
For Davison: Keith A. Findley, UW Law School

Issue/Holding: A guilty plea doesn’t waive a facially valid multiplicity claim. ¶13.

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.