On Point: 6. Waiver of appeal

State v. Andre L. Miller, 2012 WI App 68 (recommended for publication); for Miller: Jeffrey J. Guerard; case activity

Haseltine “Vouching” Rule 

The anti-vouching rule of State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984) (one witness may not comment on the credibility of another witness) isn’t applicable to a pre-trial interrogation during which the detective describes the defendant as lying.

Best Price Plumbing, Inc. v. Erie Insurance Exchange, 2012 WI 44; case activity

¶37 n. [11]:

In State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612, this court recognized that the terms “forfeiture” and “waiver” are often used interchangeably, but that the terms embody distinct legal concepts.  Forfeiture is the failure to make the timely assertion of a right,

Dane Co. DHS v. Sophia S., 2011AP2639, District 4, 2/23/12

court of appeals decision (1-judge, not for publication); for Sophia S.: Faun M. Moses; case activity

Although the parent isn’t required to object to the sufficiency of evidence adduced in support of a default judgment on grounds for termination (the court rejecting the County’s argument on this point), there was a sufficient factual basis for the default.

State v. Carl L. Dowdy, 2012 WI 12, affirming 2010 WI App 58; for Dowdy: Bryan J. Cahill; Amicus: Dustin Haskell (SPD), Robert Henak (WACDL); case activity

¶4   We conclude that Wis. Stat. § 973.09(3)(a) does not grant a circuit court authority to reduce the length of probation.  Rather, the plain language of § 973.09(3)(a) grants a circuit court authority only to “extend probation for a stated period”

Heather T. C. v. Donald M. H., 2010AP467, District 2, 2/1/12

court of appeals decision (1-judge, not for publication); for Donald: Thomas K. Voss; case activity

Failure to object at trial waived appellate challenge to jury instructions and verdict form that combined two separate periods of abandonment as grounds for termination.

 ¶6        Failure to object to proposed jury instructions or verdicts at the instruction and verdict conference constitutes waiver of any error in the instructions or verdicts.  

State v. Sharon A. Sellhausen, 2012 WI 5, reversing 2010 WI App 175; for Sellhausen: Byron C. Lichstein; case activity

The trial judge’s daughter-in-law was part of the jury pool; Sellhausen didn’t seek her removal for cause, but used a peremptory to strike her, which rendered harmless any possible error in the trial judge sua sponte failing to remove the juror for cause.

State v. Brent T. Novy, 2012 WI App 10 (recommended for publication), petition for review granted, 6/13/12; for Novy: Joseph George Easton; case activity

Rebuttal – Evidence Excluded from Case-in-Chief for Discovery Violation 

Expert witness testimony, excluded from the State’s case-in-chief as a sanction failure to identify the witness during discovery, was admissible on rebuttal to attack the defendant’s testimony after he testified.

State v. Forrest Andre Saunders, 2011 WI App 156 (recommended for publication); for Saunders: Robert A. Kagen; case activity

Notice of Alibi, § 971.23(8) – DA Comment on Missing Witness 

“Alibi” merely refers to the fact that the defendant was elsewhere when the alleged occurred, ¶21, citing, State v. Brown, 2003 WI App 34, ¶13, 260 Wis. 2d 125, 659 N.W.2d 110. 

State v. Joshua P. O’Keefe, 2010AP2898-CR, District 4, 10/13/11

court of appeals decision (1-judge, not for publication); for O’Keefe: Steven D. Grunder, SPD, Madison Appellate; case activity

¶7        O’Keefe contends that the circuit court erred in admitting the testimony of Bannach and Wanta in which they read to the jury the “Diagnosis” portion of the medical reports because O’Keefe was not afforded an opportunity to cross-examine the doctors who prepared the reports,

J. K. v. Mark Peters, 2011 WI App 149 (recommended for publication); case activity

Appellate Procedure – “Waiver,” Distinguished from “Forfeiture” 

¶1 n. 1:

In using the term “waiver,” we are aware of the recently decided case of State v. Ndina, 2009 WI 21, 315 Wis. 2d 653, 761 N.W.2d 612, where our supreme court clarified the distinction between the terms “forfeiture” and “waiver.”  See id.