On Point: K. Standards of Review

State v. Sean T. Powell, 2012 WI App 33 (recommended for publication); for Powell: Richard L. Kaiser; case activity

Conviction for CCW, § 941.23, requires proof of a “dangerous weapon,” which is in turn defined under §  939.22(10) to include “any firearm.” The pattern instruction, Wis JI-Criminal 910 embellishes the definition: “A firearm is a weapon that acts by force of gunpowder.” Powell argues that, because the State failed to show that his loaded,

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”

State v. Zachary Ryan Wiegand, 2011AP939-CR, District 3, 2/7/12

court of appeals decision (not recommended for publication); for Wiegand: Brian C. Findley; case activity

Despite initially waiving his Miranda rights, Wiegand later unequivocally asserted his right to silence (“I don’t want to say anything more”); nonetheless, the interrogating officer did not scrupulously honor this invocation, and the ensuing statement along with all derivative evidence is therefore suppressed.

State v. Reynold C. Moore, 2010AP377, District 3/4, 1/26/12

court of appeals decision (not recommended for publication); for Moore: Byron C. Lichstein; case activity; prior history: 1997AP1193-CR, habeas relief denied, Moore v. Casperson, 345 F.3d 474 (7th Cir. 2003)

Moore seeks relief on the basis of newly discovered evidence in the form of a purported recantation of State witness James Gilliam’s trial testimony.

State v. Joseph J. Wilcenski, 2013 WI App 21; case activity

Conditions of pre-trial release – alcohol treatment and testing; constitutionality

Waukesha County has adopted a policy that all persons arrested for OWI as a second or subsequent offense who live in one of ten counties be released from custody on the condition that they participate in a “pretrial intoxicated driver treatment program.” Wilcenski argues that this condition violates the constitutional rights to medical privacy and freedom from unreasonable searches.

State v. Leon A. Wedde, 2011AP130-CR, District 2, 1/11/12

court of appeals decision (1-judge, not for publication); pro se; case activity

The trial court dismissed with prejudice the pending charge when the prosecutor was unable to proceed on the scheduled date. The State argues that dismissal should have been without prejudice, and the court of appeals agrees that the trial court erroneously exercised discretion on this point,

State v. Cortez Ramon Brooks, I, 2010AP2454-CR, District 1, 1/10/12

court of appeals decision (not recommended for publication); for Brooks: Ann T. Bowe; case activity

The trial court immediately struck non-responsive testimony of a jailhouse informant that Brooks had admitted to “multiple homicides.” Denial of a subsequent motion for mistrial based on this testimony is upheld as an appropriate exercise of discretion.

¶18      First, any prejudice from Burks’s answer was cured by the trial court immediately striking the answer upon Brooks’s motion.  

State v. Demian Hyden McDermott, 2012 WI App 14 (recommended for publication); for McDermott: Robert R. Henak, Amelia L. Bizzaro; case activity

¶9 n. 2:

McDermott complains that the circuit court “erroneously exercised its discretion by its wholesale adoption of the State’s brief as its decision.”  (Most capitalization omitted.)  The sum total of the circuit court’s analysis in denying McDermott’s sentence-modification motion without first holding an evidentiary hearing is:  “For all of the reasons set forth in the State’s excellent brief,

State v. Demian Hyden McDermott, 2012 WI App 14 (recommended for publication); for McDermott: Robert R. Henak, Amelia L. Bizzaro; case activity

Sentencing Review – New Factor – Assistance to Law Enforcement 

McDermott, convicted in 1991 of first-degree intentional homicide, ptac with a parole eligibility date of 35 years, seeks new-factor-based modification of his PED on the ground “he helped law enforcement by participating in prison programs designed to dissuade youth from crime.”

State v. Cedric O Clacks, 2011AP338-CR, District 4, 12/22/11

court of appeals decision (not recommended for publication); for Clacks: Jefren E. Olsen, SPD, Madison Appellate; case activity

Evidence held sufficient to prove contested, fourth element of identity theft (intentional representation user of personal identification document of another authorized to use it), § 943.201(2)(a) as party to the crime.

¶15      Specifically, Clacks contends that handing the credit card to a sales clerk to make a purchase and signing the electronic credit card slip cannot,