On Point blog, page 8 of 10
Cross-Examination – Limitations – Witness’s Mental Health; Inadequate Argumentation – Loss of Argument
State v. Anthony M. Smith, 2009AP2867-CR, District 1/4, 3/3/11
court of appeals decision (not recommended for publication); for Smith: Rodney Cubbie, Syovata K. Edari; case activity
Trial court’s limitations on cross-examination with respect to State witness’s “prior mental condition” or use of medications (prescribed for his Bipolar Disorder and Attention Deficit Disorder) upheld as proper exercise of discretion. The witness was taking his medication at the time of the alleged offense,
Preservation of Issue: Motion in Limine; Ineffective Assistance: Client’s Failure to Reveal Information to Counsel; Harmless Error Review: Cf. IAC-Prejudice; Evidence: § 905.05 Marital Privilege & 3rd-Party
State v. Winston B. Eison, 2011 WI App 52; for Eison: Andrea Taylor Cornwall, SPD, Milwaukee Appellate; case activity
Preservation of Issue – Motion in Limine
Eison objected to introduction of evidence of his arrest on an unrelated offense via motion in limine, which the trial court granted. At trial, however, the court allowed the State to introduce this evidence. Eison didn’t need to lodge additional objection to preserve the issue for review.
Ineffective Assistance Claim – Necessity of Motion; Entrapment – Child Sex Crime with Computer
State v. Tushar S. Achha, 2009AP1977-CR, District 2, 1/26/11
court of appeals decision (3-judge, not for publication); pro se; case activity; State Resp.
Ineffective Assistance Claim – Necessity of Motion
Failure to preserve a challenge to trial counsel’s performance via postconviction motion waives the issue on appeal, ¶19.
Entrapment – Child Sex Crime with Computer
Challenge to sufficiency of evidence to negate entrapment defense rejected,
Guilty Plea Colloquy – Plea Questionnaire; Plea Bargain – Breach: Waiver Doctrine
State v. Henry Edward Reed, Jr., 2009AP3149-CR, District 1, 1/11/11
court of appeals decision (3-judge, not recommended for publication); for Reed: Basil M. Loeb; case activity; Reed BiC; State Resp.
Guilty Plea Colloquy – Plea Questionnaire
Reed’s claim that he didn’t understand the significance of read-in offenses is defeated by their coverage in the plea questionnaire, and the plea court’s eliciting “that Reed had not only read the form,
Sentencing – Right to be Sentenced by Judge Who Took Plea / Heard Evidence of Guilt
State v. Kacey G. Johnson, 2010AP1263-CR, District 1, 11/23/10
court of appeals decision (1-judge, not for publication); for Johnson: James B. Duquette; Johnson BiC; State Resp.; Reply
Johnson forfeited his claim of a right to be sentenced by the judge who took his guilty plea, by failing to object contemporaneously. This is not a matter requiring the defendant’s personal assent.
¶11 Fundamental fairness is a general due process concept.
Appellate Procedure – Affirmance on Different Theory; Search & Seizure – Plain View
State v. Jason W. Kucik, 2009AP933-CR, District 1, 11/16/10
court of appeals decision (3-judge, not recommended for publication); for Kucik: Thomas J. Nitschke; Resp. Br.; Reply; Kucik Supp. Br.; State’s Supp. Br.
Appellate Procedure – Affirmance on Different Theory than Posited Below
¶31 We agree with the State that it is appropriate for us to consider the alternate basis to affirm the trial court that the State raised for the first time at oral argument.
Jury Instructions; Ineffective Assistance; Record on Appeal; Self-Defense
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,
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.
Sufficiency of Evidence Review; Reverse Waiver; Sentence – Exercise of Discretion
State v. Carl Morgan, 2009AP74-CR, District III, 7/20/10
court of appeals decision (3-judge, not recommended for publication); for Morgan: Ralph Sczygelski; BiC; Resp.; Reply
Sufficiency of Evidence Review
Review of a denied motion for dismissal at the close of the prosecutor’s case-in-chief is waived where the defendant proceeds to put in a defense. All the evidence, including the defense presentation,