On Point blog, page 114 of 118
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.
Appellate Procedure – Harmless Error – Discovery Violation
State v. William Nielsen, 2001 WI App 192, PFR filed
For Nielsen: Waring R. Fincke
Issue/Holding:
¶20. Our review of a claimed discovery violation under Wis. Stat. § 971.23 is subject to a harmless error analysis. See State v. Koopmans, 202 Wis. 2d 385, 396, 550 N.W.2d 715 (Ct. App. 1996). The test of harmless error is whether the appellate court in its independent determination can conclude there is sufficient evidence,
Sentencing Review — Waiver of Objection to Reliance on Information
State v. Stanley A. Samuel, 2001 WI App 25, 240 Wis. 2d 756, 623 N.W.2d 565, affirmed, other grounds, 2002 WI 34
For Samuel: Robert R. Henak
Issue: Whether the defendant waived objection to the sentencing court’s reliance on information sealed from the defendant’s inspection.
Holding:
¶42 We accept the State’s waiver argument. First, just because the trial court was in its “imposing sentence”
Appellate Procedure – Harmless Error – Jury Selection – Disqualified (Non-English Speaking) Juror
State v. Michael W. Carlson, 2001 WI App 296
For Carlson: Steven L. Miller
Issue/Holding: Erroneous impaneling of a juror who, because he could not understand English, should not have been seated, wasn’t harmless beyond a reasonable doubt.
¶46. The harmless error rule adopted last term by this court in State v. Harvey, 2002 WI 93, 254 Wis. 2d 442,
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.
Double Jeopardy – Multiplicity: Judicial Estoppel Bar to Arguing
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.
Guilty Plea Waiver Rule – Issues Waived — Ex Post Facto Challenge<
State v. Alfredo Ramirez, 2001 WI App 158, PFR filed 7/11/01
For Ramirez: Elizabeth A. Cavendish-Sosinski
Issue: Whether Ramirez’s guilty plea waived an ex post facto challenge to the charged offense.
Holding: ¶4 n. 4:
We could invoke the guilty plea/waiver rule against Ramirez since he pled guilty to the charge after the trial court rejected his constitutional challenge. See State v.
Rights Waived – Self-Incrimination – Retention of Privilege – NGI Phase
State v. James G. Langenbach, 2001 WI App 222
For Langenbach: Patrick M. Donnelly, SPD, Madison Appellate
Issue: Whether the state may call a defendant to testify, as an adverse witness, at Phase II of an NGI trial, following Phase I guilty plea.
Holding: A guilty plea doesn’t necessarily result in loss of fifth amendment rights: The privilege continues at least until sentencing, ¶9; moreover, the privilege continues during the direct appeal,
Plea Bargains — Breach: Procedural Issues — Preservation by Objection
State v. John D. Williams, 2001 WI App 7, 241 Wis. 2d 1, 624 N.W.2d 164, affirmed without discussing this issue, 2002 WI 1
For Williams: John A. Pray
Issue: Whether the defendant properly preserved objection to a prosecutorial breach of plea bargain.
Holding: ¶13:
(T)he trial court recognized it as an objection and initially agreed with Williams’s attorney. The objection was sufficient.
Waiver of Appeal — Arguably Meritorious Appellate Issue that Would Have Incurred Risk
State ex rel. Richard A. Ford (II) v. Holm, 2006 WI App 176, PFR filed 9/11/06; on appeal following remand in 2004 WI App 22 (“Ford I”)
For Ford: James R. Troupis
For Amicus: Joseph N. Ehmann, SPD, Madison Appellate
Issue/Holding: Given circuit court findings “that Ford affirmatively elected not to pursue any issue that would result in the withdrawal of his plea and the possible reinstatement of a second sexual assault charge,” he is deemed to have knowingly and voluntarily waived his right to pursue a postconviction challenge to his guilty plea;