On Point: 1. Appeals

Voluntariness – Statements to Probation Officer

court of appeals decision (3-judge, not recommended for publication), supreme court review granted 11/14/12; for Sahs: Mark S. Rosen; BiC; Resp.

Sahs’ claim that his statements to his probation officer were given under compulsion is rejected, because the premise for the claim – a DOC form cautioning that he must reveal his activities else face probation revocation –

State v. Darrell K., 2010AP1910, District 1, 10/19/10

court of appeals decision (1-judge, not for publication); for Darrell K.: Jereny C. Perri, SPD, Milwaukee

Darrell’s right to counsel was violated when the trial court granted counsel’s motion to withdraw then found Darrell in default as to grounds while he was unrepresented. State v. Shirley E., 2006 WI 129, followed.

¶10      The Wisconsin Supreme Court ruled that the trial court erred in dismissing Shirley’s attorney and in finding Shirley in default when she was unrepresented throughout the hearings.  

7th circuit court of appeals decision, on habeas review of summary order of Wisconsin court of appeals

Habeas – Procedural Default & No-Merit Report

Johnson’s failure to assert an ineffective assistance of (trial) counsel claim in response to his appellate attorney’s no-merit report did not procedurally default that claim for purposes of subsequent collateral attack. The court follows Page v. Frank, 343 F.3d 901 (7th Cir.

State v. Morris L. Harris, 2009AP2833-CR,  District 1, 10/13/10

court of appeals decision (3-judge, not recommended for publication); for Harris: Gary Grass; BiC; Resp.; Reply

Lesser-Included Instruction – Battery

Harris not entitled to instruction on simple battery as lesser included of substantial battery; the medical evidence established without contradiction that the victim suffered a fractured rib, therefore no reasonable jury could have acquitted him of the greater offense,

State v. Daniel H. Hanson, 2010 WI App 146 (recommended for publication), affirmed 2012 WI 4; for Hanson: Chad A. Lanning; case activity

Fleeing, § 346.04(3)

Can you criminally “flee” the police, if what you’re actually doing is driving to the nearest police station to escape what you believe to be a beating at the hands of the officer you’re fleeing?

decision below: unpublished; prior On Point post; for Rhodes: John J. Grau

Issue (from Table of Pending Cases):

Whether a criminal defendant’s constitutional right to confront a witness in cross-examination was infringed, and, if so, whether the infringement was harmless error.

Homicide case, tried on State’s theory Rhodes had motive to kill victim for beating Rhodes’ sister; court of appeals reversed because trial judge cut off cross-examination that Rhodes did not react violently in response to prior harm inflicted by victim on sister.

State v. Precious M. Ward, 2009AP2085-CR, District 1, 10/5/10

court of appeals decision (3-judge, not recommended for publication); for Ward: Lew A. Wasserman; BiC; Resp.; Reply

Hearing-Impaired Juror

Juror who was hearing impaired, but not completely so; who could lip read; and for whom the trial judge took precautions to make sure he could hear everything, was qualified to sit.

State v. Christopher Jones, 2009AP2761-CR, District 1, 9/28/10

court of appeals decision (3-judge, not recommended for publication); for Jones: Jeremy C. Perri, SPD, Milwaukee Appellate; BiC; Resp.; Reply

The court rejects a claim of an “end-run” around the plea bargain, which limited the State’s recommendation to 10 years imprisonment while leaving the “configuration” of confinement and supervision to judicial discretion, based on prosecutorial comments:

• the “whole matter was “aggravated by the defendant’s record,”

court of appeals decision (1-judge, not for publication); for Grenie: John C. Orth; Steven J. House; BiC; Resp.; Reply

Traffic Stop – Blue Lights

Traffic stop for having blue lights lit on front of vehicle, upheld. (§ 347.07(2)(a) bars display of “(a)ny color of light other than white or amber visible from directly in front.”)

¶6        Grenie essentially asks this court to credit testimony by his two witnesses suggesting that the blue lights were “never” operational over the officer’s testimony that he saw the lights lit when Grenie’s Jeep passed him.

Dane Co. DHS v. Tierra M., 2010AP1648, District 4, 9/23/10

court of appeals decision (1-judge, not for publication); for Tierra M.: Martha K. Askins, SPD, Madison Appellate

The court rejects the idea that Tierra M.’s termination of parental rights wasn’t “fully tried” under the theory that the subsequently decided Sheboygan County Department of Health & Human Services v. Tanya M.B., 2010 WI 55 requires departmental services relevant to implied as well as explicitly ordered conditions for the children’s return.