On Point: 1. Appeals

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court of appeals decision (1-judge, not for publication); for O’Keefe: Steven D. Grunder, SPD, Madison Appellate; case activity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,

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,

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.

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?

State v. Dion M. Echols, 2010AP2626-CR, District 1, 9/27/11

court of appeals decision (not recommended for publication); for Echols: Amelia L. Bizzaro; case activity

Evidence held sufficient to establish “great bodily harm” element of 1st-degree sexual assault, § 940.225(1)(a), where the harm was inflicted a short time after the assault.

¶23      In this case, the trial court properly determined that Echols’ shooting M.F. subsequent to the nonconsensual sexual contact constituted great bodily harm.  

Outagamie County v. Paul S., 2011AP920, District 3, 9/27/11

court of appeals decision (1-judge, not for publication); for Paul S.: Shelley Fite, SPD, Madison Appellate; case activity

¶9        Wisconsin Stat. § 51.15(5) provides an individual may “not be detained by the law enforcement officer or other person and the facility for more than a total of 72 hours, exclusive of Saturdays, Sundays, and legal holidays” without a hearing.  

State v. Daniel R. Doyle, 2010AP2466-CR, District 4, 9/22/11

court of appeals decision (1-judge, not for publication); for Doyle: John C. Orth; case activity

Transport of drunk driving suspect 3-4 miles to local police station for purpose of administering field sobriety tests didn’t covert Terry stop into arrest, given that extreme, adverse weather conditions rendered impractical such testing at the scene.

¶11      Terry is codified in Wis.

seventh circuit court of appeals decision

Habeas – Counsel – Appeal 

When a defendant in a criminal case specifically instructs a lawyer to file a notice of appeal, the lawyer’s failure to do so deprives the defendant of the Sixth Amendment right to counsel, regardless of whether an appeal was likely to succeed. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000); Peguero v. United States,

State v. Dennis D. Lemoine, 2010AP2597-CR, District 4, 9/15/11

court of appeals decision (not recommended for publication); for Lemoine: Donna L. Hintze, Katie R. York, SPD, Madison Appellate; case activity; supreme court review granted, 1/25/12

¶18      We agree with the trial court that the balance of the defendant’s personal characteristics against the tactics used by the police renders this is a “close case.”  However,

State v. James T. Kettner, 2011 WI App 142 (recommended for publication); for Kettner: Andrew R. Hinkel, Jefren E. Olsen, SPD, Madison Appellate; case activity

Hearing-Impaired Juror – Inability to Hear Certain Testimony 

A juror’s inability to hear most of alleged victim S.K.’s answers in a videotaped interview didn’t violate Kettner’s rights to impartial jury or due process, given that S.K. also testified in person consistent with her videotaped answers.