On Point blog, page 99 of 118
Appellate Procedure – Waiver of Argument: Confrontation – Crawford Issue, Trial Held Before Crawford Decided
State v. Jeffrey Lorenzo Searcy, 2006 WI App 8
For Searcy: Joseph L. Sommers
Issue/Holding: Failure to raise a Crawford objection didn’t amount to waiver: “However, Searcy could not have raised at trial a Confrontation Clause claim based on Crawford v. Washington, 541 U.S. 36 (2004), because his December 2002 trial preceded the March 2004 Crawford decision by well over a year.
Guilty Plea Waiver Rule – Generally, Exception for IAC Claim
State v. Juan F. Milanes, 2006 WI App 259, PFR filed 12/7/06
For Milanes: Joan M. Boyd
Issue/Holding:
¶13 A valid guilty or no contest plea waives all nonjurisdictional defenses to a conviction, including constitutional violations. See State v. Riekkoff, 112 Wis. 2d 119, 122-23, 332 N.W.2d 744 (1983). One exception to this rule is the claim of ineffective assistance of counsel under the Sixth Amendment.
Judicial Estoppel Bar to Argument, General Principles
Olson v. Darlington Mutual Ins., 2006 WI App 204
Issue/Holding:
¶4 … The required elements of judicial estoppel are:
First, the later position must be clearly inconsistent with the earlier position; second, the facts at issue should be the same in both cases; and finally, the party to be estopped must have convinced the first court to adopt its position—a litigant is not forever bound to a losing argument.
Appellate Procedure: Standard of Review – Generally
State v. Justin D. Gudgeon, 2006 WI App 143, PFR filed 7/14/06
For Gudgeon: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: Where the appellate court is positioned equally to review the matter, whether labeled one of fact or of law, no deference need be given the trial court:
¶19 … (T)his court is in just as good a position as the circuit court to answer that question.
Binding Authority – Law of the Case Doctrine – Inapplicable to Trial-Level Decisions
State v. Kevin Brown, 2006 WI App 41
For Brown: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding:
¶10 We first examine the trial court’s reliance on the earlier order and its determination that it was “the law of the case.” Citing Univest Corp. v. General Split Corp., 148 Wis. 2d 29, 38, 435 N.W.2d 234 (1989), Brown argues:
The law of the case doctrine is inapplicable.
Appellate Procedure – Harmless Error – Conviction on Lesser Offense
State v. Quentrell E. Williams, 2006 WI App 212
For Williams: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: ¶23, n.5:
Williams also contends that the evidence was relevant to whether he intentionally caused harm to A.B.A. because intentional child abuse is a specific intent crime. However, Williams was acquitted of intentionally causing harm to a child. Thus, he cannot show that he was prejudiced in his defense as to intentionally causing harm to a child by his attorney’s failure to introduce that evidence.
Appellate Procedure – Harmless Error – Erroneous Admission of Misconduct Evidence (of Uncharged Child Sexual Assault)
State v. Randy Mcgowan, 2006 WI App 80
For Mcgowan: Dianne M. Erickson
Issue/Holding: Wrongful admission of misconduct evidence was reversible error:
¶37 Based on our review, we are not convinced beyond a reasonable doubt that the admission of Janis’s testimony did not contribute to the verdict. The State’s case was based entirely on various recollections about events that occurred years earlier. [3] The defense disputed many of those recollections and noted the lack of physical evidence of any sort corroborating physical abuse by a large man of a small child.
Appellate Procedure – Harmless Error – Right to Present Defense
State v. Thomas G. Kramer, 2006 WI App 133, PFR filed 7/10
For Kramer: Timothy A. Provis
Issue/Holding: Any error in exclusion of evidence claimed necessary to support the theory of imperfect self-defense would have been harmless:
¶26 … Our inquiry, therefore, is whether it is “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.” Neder v.
Appellate Procedure – Harmless Error Analysis – Joinder
State v. Bruce T. Davis, 2006 WI App 23
For Davis: Russell Bohach
Issue/Holding: Misjoined counts were harmful error, notwithstanding a curative instruction, where the only evidence connecting Davis to the crimes were eyewitnesses who, although they ID’ed Davis, gave “quite varied” descriptions to the police, ¶22.
Counsel – Conflict of Interest – Representation of Defendant by Prosecutor in Prior Case – Pretrial Motion to Disqualify, Timeliness
State v. Christopher M. Medina, 2006 WI App 76
For Medina: Daniel P. Ryan
Issue: Whether a motion to disqualify a prosecutor because of representation of defendant in a prior case, brought immediately before jury selection, may be deemed waived on timeliness grounds.
Holding:
¶24 We conclude the circuit court may, in the proper exercise of its discretion, deny a motion to disqualify a prosecutor under the substantial relationship standard if the motion is untimely.