On Point blog, page 78 of 118
Sanctions
City of Shawano v. Darlene F. Sense, 2010AP2193-FT, District 3, 2/8/11
court of appeals decision (1-judge, not for publication); case activity; Memo Br.; Memo Resp.; Memo Reply
¶10 As a final matter, we address certain deficiencies in Sense’s appellate brief. First, Sense’s repeated references to “appellant” and “respondent” throughout her brief violate WIS. STAT. RULE 809.19(1)(i), which requires reference to the parties by name,
Harmless Error; Hearsay – Medical Treatment/Diagnosis
State v. Jimmie Lee Higgins, 2010AP861-CR, District 1, 2/1/11
court of appeals decision (3-judge, not recommended for publication); for Higgins: Ellen Henak, SPD, Milwaukee Appellate; case activity; Higgins BiC; State Resp.; Reply
Any error with respect to exclusion of the victim’s pretrial statement to the police in one instance, and admissibility of her statements to a nurse, would be harmless.
Ineffective Assistance Claim – Necessity of Motion; Entrapment – Child Sex Crime with Computer
State v. Tushar S. Achha, 2009AP1977-CR, District 2, 1/26/11
court of appeals decision (3-judge, not for publication); pro se; case activity; State Resp.
Ineffective Assistance Claim – Necessity of Motion
Failure to preserve a challenge to trial counsel’s performance via postconviction motion waives the issue on appeal, ¶19.
Entrapment – Child Sex Crime with Computer
Challenge to sufficiency of evidence to negate entrapment defense rejected,
Serial Litigation Bar: Application to Motion for Postconviction Discovery
State v. Terry L. Kletzien, Jr., 2011 WI App 22; for Kletzien: James A. Rebholz; case activity; Kletzien BiC; State Resp.; Reply
In a prior appeal, Kletzien unsuccessfully challenged denial of postconviction discovery, 2008 WI App 182. (See, e.g., State v. O’Brien, 223 Wis. 2d 303,
Guilty Plea Colloquy – Plea Questionnaire; Plea Bargain – Breach: Waiver Doctrine
State v. Henry Edward Reed, Jr., 2009AP3149-CR, District 1, 1/11/11
court of appeals decision (3-judge, not recommended for publication); for Reed: Basil M. Loeb; case activity; Reed BiC; State Resp.
Guilty Plea Colloquy – Plea Questionnaire
Reed’s claim that he didn’t understand the significance of read-in offenses is defeated by their coverage in the plea questionnaire, and the plea court’s eliciting “that Reed had not only read the form,
Judicial Estoppel
State v. Basil E. Ryan, Jr., 2011 WI App 21; case activity; Ryan BiC; State Resp.; Reply
¶26 “‘Judicial estoppel is a doctrine that is aimed at preventing a party from manipulating the judiciary as an institution by asserting a position in a legal proceeding and then [later] taking an inconsistent position.’” State v. White,
Sanctions – Appellate Procedure
Thomas Vitrano v. Milwaukee Police Department, 2010AP1987, District 1, 1/11/11
court of appeals decision (1-judge, not for publication); pro se; case activity; Resp. Br.
We note with some frustration that neither party included a single citation to the record in their respective briefs in violation of Wis. Stat. Rule 809.19(1)(d). Record cites are helpful to the court and are required even when the record is not voluminous.
Confrontation – Generally – Forfeiture by Wrongdoing – Harmless Error; Other Acts Evidence: Pornography (& Intent to Kill); Consent to Search; Judicial Bias
State v. Mark D. Jensen, 2011 WI App 3; prior history: 2007 WI 26; for Jensen: Terry W. Rose, Christopher William Rose, Michael D. Cicchini; case activity; (Jensen BiC not posted); State Resp.; Jensen Reply
Confrontation – Generally
The Confrontation Clause regulates testimonial statements only, such that nontestimonial statements are excludable only under hearsay and other evidence-rule ¶¶22-26,
Jury – Deliberations – Sequestration
State v. Bradley A. Brandsma, 2010AP1429-CR , District 4, 12/23/10
court of appeals decision (1-judge, not for publication); for Brandsma: Anthony J. Jurek; case activity; Brandsma BiC; State Resp.; Reply
Trial courts have “very broad discretion” under § 972.12 to allow a deliberating jury to separate overnight before returning to resume deliberations; court of appeals rejects argument under state and federal constitutions “a circuit court should presume that any separation of a jury renders that jury impartial in light of rapidly changing modes and content of publicly available information,”
Evidence – Ongoing Conflict with Deceased, Hearsay – Residual Exception, 3rd-Party Guilt; Sufficiency of Evidence – Homicide
State v. Kevin M. Moore, 2009AP3167-CR, District 2, 12/15/10
court of appeals decision (3-judge, not recommended for publication); for Moore: Jeffrey W. Jensen; Moore BiC; State Resp.; Reply
Evidence – Frequenting “Gentleman’s Club” as Source of Friction with Deceased
Evidence that Moore spent much time and money at a local “gentleman’s club,” offered by the State to as support for an “ongoing conflict”