On Point blog, page 71 of 118
Notice of Alibi, § 971.23(8): DA Comment on Missing Witness; Appellate Procedure, Forfeiture of Issue: Sleeping Juror
State v. Forrest Andre Saunders, 2011 WI App 156 (recommended for publication); for Saunders: Robert A. Kagen; case activity
Notice of Alibi, § 971.23(8) – DA Comment on Missing Witness
“Alibi” merely refers to the fact that the defendant was elsewhere when the alleged occurred, ¶21, citing, State v. Brown, 2003 WI App 34, ¶13, 260 Wis. 2d 125, 659 N.W.2d 110.
Discovery Violation, § 971.23(1)(g) – Prejudice
State v. Joseph Hammer, 2010AP3019-CR, District 1, 11/22/11
court of appeals decision (not recommended for publication); for Hammer: Rex Anderegg; case activity
The State’s conceded discovery violation (failure to produce reports or photographs related to a trajectory rod investigation) prejudiced the defense and therefore entitles Hammer to a new trial on two counts of attempted first-degree intentional homicide: 1. the erroneously admitted trajectory rod evidence “severely undermined”
Monetary Sanction, Appendix- Content Certification Rule
In the Matter of Sanctions in: State v. Gregory K. Nielsen, 2011 WI 94, remanding sanctions order; for State Public Defender: Joseph N. Ehmann; case activity; subsequent history: sanction re-imposed on remand
Monetary sanction summarily ordered by court of appeals against appellate counsel for allegedly violating appendix-content rule reversed, with following “suggestion” for procedure to be followed in such situations:
¶5 Considering the interests of the court of appeals,
Sentencing – Discretion – Victim Allocution
State v. Christina L. Contizano, 2011AP477-CR, District 4, 10/27/11
court of appeals decision (1-judge, not for publication); for Contizano: Robert C. Howard III; case activity
At Contizano’s sentencing for obstructing, based on lying to the police about her daughter’s location, the trial court didn’t erroneously exercise discretion in allowing Contizano’s ex-husband to advocate as a “victim” of the offense, in favor of a term of incarceration.
¶7 We conclude the court did not erroneously exercise its discretion when it considered the Walworths’ statements at sentencing.
Interest-of-Justice Review: Post-Trial Revelations Undermining State’s Witnesses
State v. Kenneth M. Davis, 2011 WI App 147 (recommended for publication); for Davis: Robert R. Henak; case activity; reissuance after prior decision withdrawn
Several items of testimony, coming to light after trial, directly contradict the trial testimony of the main State’s witnesses, leading the court to conclude that the real issue in controversy – Davis’s alleged involvement in a drug-house robbery and murder of an occupant –
Postconviction Proceedings – Expiration of Deadline for Ruling; Ineffective Assistance of Counsel – Voir Dire – Juror Bias
State v. Edward Beck, 2010AP872-CR, District 4, 10/20/11
court of appeals decision (1-judge, not for publication); pro se; case activity
Circuit court is under no obligation to seek extension of the § 809.30(2) limitation period for its ruling on a postconviction motion.
¶6 Beck reads too much into the 2001 amendment to Wis. Stat. § 809.30(2)(i). The amendment simply added language to § 809.30(2)(i) specifying the entities that may request an extension,
Appellate Briefing – Forfeiture of Argument; Harmless Error
State v. Joshua P. O’Keefe, 2010AP2898-CR, District 4, 10/13/11
court of appeals decision (1-judge, not for publication); for O’Keefe: Steven D. Grunder, SPD, Madison Appellate; case activity
¶7 O’Keefe contends that the circuit court erred in admitting the testimony of Bannach and Wanta in which they read to the jury the “Diagnosis” portion of the medical reports because O’Keefe was not afforded an opportunity to cross-examine the doctors who prepared the reports,
Newly Discovered Evidence: New Forensic Method, Photogrammetric Analysis; Interest-of-Justice Review
State v. Brian K. Avery, 2011 WI App 148 (recommended for publication), supreme court review granted, 2/23/12; for Avery: Keith A. Findley; case activity; prior 974.06 appeal: 2008AP500-CR; direct appeal: 1997AP317
Newly Discovered Evidence – New Forensic Method – Photogrammetric Analysis
Expert photogrammetric opinion, derived from video enhancement technology (“VISAR”) not commercially available until after Avery’s trial,
Appellate Procedure: “Waiver,” Distinguished from “Forfeiture” – Civil Case Necessity of Post-Trial Motion
J. K. v. Mark Peters, 2011 WI App 149 (recommended for publication); case activity
Appellate Procedure – “Waiver,” Distinguished from “Forfeiture”
¶1 n. 1:
In using the term “waiver,” we are aware of the recently decided case of State v. Ndina, 2009 WI 21, 315 Wis. 2d 653, 761 N.W.2d 612, where our supreme court clarified the distinction between the terms “forfeiture” and “waiver.” See id.
State v. Jeffrey G. Sutton, 2010AP1391-CRNM, rev. granted 9/27/11
on review of summary order (District 1); for Sutton: Colleen Ball, SPD, Milwaukee Appellate; case activity
No-Merit Appeal Procedure – Remand for Evidentiary Hearing
Issues:
1. (Composed by On Point:) Whether § 809.32(1)(g) requires the court of appeals to remand a case to the circuit court for an evidentiary hearing where, during the course of a no-merit proceeding, an arguably meritorious claim for ineffective assistance of postconviction counsel becomes apparent?