On Point blog, page 9 of 10
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.
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court of appeals decision (1-judge, not for publication); for Keri H.: Leonard D. Kachinski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,
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,
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court of appeals decision (1-judge; not for publication)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.
Guilty Plea Waiver Rule: Detainer Act Claim
State v. Karon M. Asmus, 2010 WI App 48; for Asmus: Donald C. Dudley
Interstate Detainer Act claim is waived by guilty plea:
¶3 A guilty plea constitutes a waiver of all nonjurisdictional defects and defenses. State v. Kelty, 2006 WI 101, ¶18, 294 Wis. 2d 62, 716 N.W.2d 886. This rule applies even though the defendant attempts to preserve an issue by raising it in the circuit court.
State v. Alexander Marinez, 2010 WI App 34
court of appeals decision; for Marinez: David Leeper; BiC; Resp. Br.; Reply Br.
Appellate Procedure – Waiver and Effective Assistance of Counsel
¶12 n. 12:
Although Marinez argues ineffective assistance of counsel, he also asks that we review his statutory and due process arguments directly. He cites to State v. Anderson, 2006 WI 77,
State v. Robert L. Duckett, 2010 WI App 44
court of appeals decision; for Duckett: Michael K. Gould, SPD, Milwaukee Appellate; BiC; Resp. Br.; Reply Br.
Guilty Pleas – Breach – Lack of Contemporaneous Objection
Failure to object contemporaneously forfeits right of review of subsequently-asserted plea bargain breach. The issue therefore is reviewable only “in the context of a claim for ineffective assistance of counsel,” ¶6.
The court is fond of making this pronouncement,
No-Merit Report – Counsel Appointed by Circuit Court Rather Than SPD
State v. Carl Davis Brown, Jr., 2009 WI App 169
For Brown: Paul G. Bonneson
For SPD: Colleen D. Ball, Milwaukee Appellate
Issue/Holding:
¶7 The statutes referenced in Wis. Stat. Rule 809.32(1)(a), relate to the appointment of counsel by the state public defender. Thus, pursuant to Rule 809.32(1)(a), an attorney appointed by the state public defender may file a no-merit report using the statutory scheme set out in Rule 809.32.
Mootness – Reconfinement Proceeding
State v. Clayborn L. Walker, 2008 WI 34, reversing 2007 WI App 142
For Walker: Amelia L. Bizzaro
Issue/Holding:
¶14 As a preliminary matter, while the issue before the court is moot because Walker has completed his reconfinement term and thus our decision will not affect the underlying controversy, we may at times consider a moot issue if it is of “great public importance or arises frequently enough to warrant a definitive decision to guide the circuit courts.”