On Point blog, page 86 of 120
Jury Instructions: Exposing Child to Harmful Materials – Accident Defense – Waiver; Evidence: Richard A.P. – Corroboration Rule; Evidence: Character – Polygraph Offer; Voluntary Statement
State v. Esteban M. Gonzalez, 2010 WI App 104, reversed, 2011 WI 63, see: this post; for Gonzalez: Kristin Anne Hodorowski; BiC; Resp.; Reply
Jury Instructions – Exposing Child to Harmful Materials
The pattern instruction on exposing a child to harmful material, § 948.11(2)(a), accurately recites the elements, including scienter.
¶11 We agree with the trial court’s assessment that the pattern instruction accurately states the law.
Counsel – Substitution – Deaf Defendant
State v. Dwight Glen Jones, 2010 WI 72, affirming unpublished opinion; for Jones: Ellen Henak, SPD, Milwaukee Appellate; BiC; Resp.; Reply
¶43 The issues presented are first, whether Jones is entitled to a new trial on the grounds that the circuit court wrongly denied his request for substitution of counsel, and second, whether he is entitled to a new trial on the grounds that such a denial violates rights guaranteed by the Wisconsin Constitution and the Sixth Amendment to the United States Constitution.
Counsel – Waiver – Self-Representation
State v. Rashaad A. Imani, 2010 WI 66, reversing 2009 WI App 98;habeas relief granted 6/22/16; for Imani: Basil M. Loeb; BiC; Resp.; Reply
¶3 We conclude that the circuit court properly denied Imani’s motion to represent himself. First, we determine that Imani did not knowingly, intelligently, and voluntarily waive the right to counsel. The circuit court engaged Imani in two of the four lines of inquiry prescribed in Klessig and properly determined that Imani (1) did not make a deliberate choice to proceed without counsel,
Obstructing, § 946.41 – Sufficiency of Evidence
State v. Roy B. Ismert, No. 2009AP1971-CR, District IV, 7/1/10
court of appeals decision (1-judge; not for publication); for Ismert: Kristen D. Schipper; BiC; Resp.; Reply
The evidence was sufficient to support the obstructing element that Ismert knew the police officer had legal authority to stop, question and arrest him.
¶14 We conclude that Lossman and Grobstick are persuasive on the facts before us.
Plea Bargain – Rejection; Recusal – Judge as Party
State v. Joshua D. Conger, 2010 WI 56, on certification; for Conger: Anthony L. O’Malley; Brief (State); Brief (Conger); Brief (Judge Grimm); Reply (Conger); Amicus (Prosecution Project, UW)
Plea Bargain – Rejection
A circuit court has post-arraignment authority to reject a proposed plea bargain that would result in amendment to the charge; State v.
Search-Incident: Automobile; Sufficiency of Evidence: Manufacturing THC
State v. Timothy Charles Bauer, 2010 WI App 93; for Bauer: Catherine M. Canright; BiC; Resp.; Reply
Search-Incident – Automobile
By failing to address Bauer’s Arizona v. Gant argument, instead relying solely on State v. Fry, 131 Wis. 2d 153, 174, 388 N.W.2d 565 (1986), the States’ argument compels the court to reverse the suppression order:
¶9 Here,
1st-Degree Intentional Homicide – Sufficient Evidence, Intent; Sanction – Appendix
State v. Patrick M. Zurkowski, No. 2009AP929-CR, District III, 6/22/10
court of appeals decision (3-judge, not recommended for publication); for Zurkowski: Michael J. Fairchild; BiC; Resp.
1st-Degree Intentional Homicide – Sufficient Evidence, Intent
¶13 That Zurkowski killed June through a combination of repeated blows and cutting her tongue with a ceramic object he crammed in her mouth, rather than by killing her via a single fatal wound,
Milw. Dep’y. Sh. Assoc. and Kuhtz v. City of Wauwatosa, No. 2009AP1924, District I, 6/15/10
court of appeals decision; BiC; Resp.; Reply
Confidentiality – § 51.30(4) – Emergency Detention Statement
Release by a police department of a statement of emergency detention, occasioned by a deputy sheriff’s threat to kill superior officers, violated the § 51.30(4) prohibition on release of “treatment records”; and was not justified by the public policy exception that imposes on psychiatrists the duty to warn potential targets of threats made by patients.
Appellate Review – Implicit Findings; Statement – Voluntariness
State v. Armando J. Castanada, No. 2009AP1438-CR, District I, 6/15/10
court of appeals decision (3-judge, not recommended for publication); for Castanada: Jeremy C. Perri; BiC; Resp.; Reply
Appellate Review – Implicit Findings
¶30 The postconviction circuit court did not make any express findings as to the credibility of any of the witnesses’ testimony. However, as the State observes, when the circuit court does not make express findings,
State v. Brian A. Oetzman, 2009AP2514-CR, District II, 6/9/10
court of appeals decision (1-judge; not for publication); for Oetzman: Kirk B. Obear; BiC; Resp.; Reply
Traffic Stop – U-Turn
¶8 As such, three rules of the road come into play.Under Wis. Stat. § 346.34(1), no person may turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in Wis.