On Point blog, page 81 of 117
Expert Witness Qualifications; Admissibility – Field Sobriety Tests; WI (Drugs) – Sufficiency of Evidence
City of Mequon v. James E. Haynor, 2010AP466-FT, District 2, 9/8/10
court of appeals decision (1-judge, not for publication); for Haynor: Peter L. Ramirez; BiC; Resp.; Reply
Expert Witness Qualifications – Lab Chemist: Physiological Effects of Drugs
The trial court didn’t erroneously exercise discretion in qualifying as an expert, the supervisor of forensic toxicology at the Wisconsin State Laboratory of Hygiene on the matter of how certain drugs interact and impair judgment,
SVP – Retroactivity of Qualifying Offense Legislation; State’s Waiver; Newly Discovered Evidence – Re-normed Actuarial
State v. Christopher Melendrez, 2009AP2070, District 4, 9/2/10
court of appeals decision (3-judge, not recommended for publication); for Melendrez: David R. Karpe; BiC; Resp.; Reply
SVP – Retroactivity of Qualifying Offense Legislation
Third-degree sexual assault wasn’t an SVP-qualifying offense when Melendrez plea-bargained a reduction of 2nd-degree sexual assault to 3rd. But by the time he was released from prison,
Obstructing – Unanimity – Course of Conduct; Obstructing – Sufficiency of Proof
State v. Jennette L. Ellifritz, 2010AP713-CR, District 2, 9/1/10
court of appeals decision (1-judge, not for publication); for Ellifritz: Gary Grass; BiC; Resp.; Reply
Obstructing – Unanimity – Course of Conduct
Because Ellifritz’s actions occurred during a single course of action, over a short (40-second) period of time, instructional failure to require agreement as to which separate act constituted obstructing didn’t violate her right to unanimous verdict;
PAC – Burden of Proof
State v. David E. Steinke, 2009AP3207-CR, District 4, 8/26/10
court of appeals decision (1-judge, not for publication); for Steinke: Cody Wagner; BiC; Resp.; Reply
Driving with a prohibited alcohol content of .08 or more, second offense, is a crime and therefore subject to beyond-reasonable-doubt burden of proof. Sitting as trier of fact in a bench trial, the circuit arguably misapprehended the burden as greater weight of the credible evidence,
Evidence – Daubert; Discovery – Witness Notes; Briefs – Argumentation and SCRs; Closing Argument – Failure to Object; Ineffective Assistance – Failure to Investigate; Newly Discovered Evidence
State v. Christopher D. Jones, 2010 WI App 133; for Jones: Amelia L. Bizzaro; for Amicus, Innocence Network: Jerome F. Buting; BiC; Resp.; Reply; Amicus Br.
Evidence – Daubert – Bullet Traced to Particular Gun
The court rejects “a blanket rule barring as a matter of course all testimony purporting to tie cartridge cases and bullets to a particular gun”:
¶22 Unlike in the federal system,
Harmless Error; Jury View
State v. Jason M. Bruckbauer, 2009AP1823-CR, District 4, 8/19/10
court of appeals decision (3-judge, not recommended for publication); for Bruckbauer: Dennis Schertz; BiC; Resp.; Reply
Harmless Error
Any error in admission of a pretrial ID of Bruckbauer from a photo array was harmless, where: the challenged ID didn’t directly implicate him in the homicide but merely placed him at the scene;
Sentence – Factors – Exercise of Constitutional Right; Sentence – Effective Assistance of Counsel
State v. Sabian L. Yunck, 2009AP3020-CR, District 1, 8/17/10
court of appeals decision (1-judge, not for publication); for Yunck: Byron C. Lichstein; BiC; Resp.; Reply
Sentence – Factors – Exercise of Constitutional Right
Convicted of violating a domestic abuse order forbidding contact with the mother of his child, Yunck argues that sentence was impermissibly based on his exercise of a constitutional right,
Recusal – Waiver; Guilty Plea – Factual Basis – Sexual Intercourse with Child
State v. Roger D. Godwin, No. 2009AP2999-CR, District 4, 8/5/10
court of appeals decision (1-judge, not for publication); pro se
Recusal – Waiver
¶10 Godwin argues that Judge VanDeHey should have recused himself from the case because one of the judge’s colleagues, Judge Curry, and other courthouse staff were Godwin’s victims in the bomb threat case. The State argues that the judge was not required to recuse under WIS.
State v. Chad W. Voeller, No. 2009AP001596-CR, District II, 7/28/10
court of appeals decision (3-judge, not recommended for publication); for Voeller: Steven G. Richards; BiC; Resp.; Reply
Counsel – Sanction – Appendix
Contrary to the State’s certification, the appendix does not include the trial court’s findings or opinion. The transcript of the oral findings and opinion should have been included in the appendix.
SVP Discharge Procedure: Summary Judgment not Supported
State v. Walter Allison, Jr., 2010 WI App 103; for Allison: Ellen Henak, SPD, Milwaukee Appellate; BiC; Resp.; Reply
Summary judgment in favor of discharge isn’t an available option under § 980.09.
¶18 Applying the principles governing statutory interpretation to Wis. Stat. § 980.09, it is clear that the legislature explicitly prescribed a different procedure from those outlined in Wis.