On Point blog, page 85 of 118
Zarder v. Acuity, 2010 WI 35
supreme court decision; BiC; Resp.; Reply
Court of Appeals Authority to Declare Dicta
¶57 By concluding that a statement in a supreme court opinion is dictum, the court of appeals necessarily withdraws or modifies language from that opinion, contrary to our directive in Cook. …
¶58 If the court of appeals could dismiss a statement in a prior case from this court as dictum,
State v. Roy K. Collins, 2009AP1060, District I, 4/27/10
court of appeals decision (3-judge; not recommended for publication); pro se; Resp. Br.
Serial Litigation Bar
Collins’ § 974.06 motion is procedurally barred by his failure to allege a “sufficient reason” for not previously raising issues as part of his prior, no-merit appeal, ¶1.
Bit more interesting than that, in the following sense: the court not only pays lip service to the idea that it “must pay close attention to whether the no merit procedures were followed,”
State v. Carl A. Lewis, Jr., 2010 WI App 52
court of appeals decision; ror Lewis: John T. Wasielewski; Resp. Br.; Reply Br.
Appellate Procedure – Standard of Review: Government Informant
¶16 Our discussion must begin, as it almost always does, with the standard of review. In deciding whether a person is a government informant or agent for purposes of this Sixth Amendment analysis, the determination regarding the relationship or understanding between the police and the informant is a factual determination.
Ortiz v. Jordan, No. 09-733, cert grant, 4/26/10
May a party appeal an order denying summary judgment after a full trial on the merits if the party chose not to appeal the order before trial?
SCOTUS docket: here. Scotusblog, briefs: here.
This have anything to do with SPD-related practice? Not really, strictly speaking. But, isn’t the problem at least somewhat reminiscent of the recurrent one based in State v.
Peter H. v. Keri H., 2009AP2487, District III, 4/23/10
court of appeals decision (1-judge, not for publication); for Keri H.: Leonard D. Kachinski
IAC Claim – TPR
“The decision not to emphasize events preceding the current termination petitions was a reasonable strategic choice and does not constitute ineffective assistance of counsel,” ¶11. Separately: counsel did not perform deficiently in his efforts to obtain Keri H.’s client file from predecessor counsel, and then securing an adjournment to prepare for trial,
State v. David R. Knapp, 2009AP1463-CR, District IV, 4/22/10
court of appeals decision (1-judge; not for publication); for Knapp: David M. Helmke; BiC; Resp.
Harmless Error – Prior Conviction
Inadmissible testimony suggestive of a prior conviction (Knapp’s statement upon arrest “that he was going to jail again”) was non-prejudicial: Knapp himself testified he had a prior conviction and nothing in the inadmissible testimony indicated the nature of the prior.
State v. Quovadis Conyice Evans, 2009AP889-CR, District I, 4/20/10
court of appeals decision (3-judge; not recommended for publication); for Evans: George Tauscheck; BiC: Resp.; Reply
Testimony from 4 (of a total of 9) false imprisonment victims wasn’t necessary to sustain the convictions on those counts:
… (A) reasonable jury could have determined beyond a reasonable doubt from circumstantial evidence that Nathan B., Nicholas B., Nigel B. and Rashod H. did not consent to being restrained by Evans.
Appellate Procedure: State’s Waiver; Exculpatory Evidence: State’s Failure to Preserve
State v. Kyle Lee Huggett, 2010 WI App 69; for Huggett: Craig A. Mastantuono; BiC; Resp; Reply
The State forfeited a potential appellate argument by conceding it in the trial court, in response to Huggett’s postconviction motion, ¶14.
Unmentioned by the court: the State is the appellant. Why does that matter? Because the general rule is that the respondent on appeal may raise any argument,
Eric D. Holmes v. Levenhagen, 7th Cir No. 06-2905, 4/2/10
7th circuit decision; on appeal after remand, Eric D. Holmes v. Buss, 506 F.3d 576 (7th Cir 2007)
Competency of Petitioner, While Pursuing Habeas Relief
Given that petitioner is clearly incompetent (“He is deeply confused, obsessed, and delusional”) court orders habeas proceeding suspended until state shows his condition sufficiently improved.
This is a death penalty case, and the decision in the prior appeal indicated that it had “found no noncapital case in which such a claim (petitioner’s incompetency,
Bridget A.N. v. Justin E.H., 2010AP13, District II, 3/31/2010
court of appeals decision (1-judge; not for publication)
Appellate Procedure – Contemporaneous Objection Rule
Waiver of issue on appeal where objections lodged at trial “were not specific enough to put the trial court on notice” of the objection posited on appeal; motion for mistrial was not contemporaneous with occurrence of error and therefore “came to late” to be raised on appeal.