On Point blog, page 34 of 49
Trial Court Ruling, Generally: Independent Judicial Analyis Necessary (“Wholesale Adoption” of Party’s Brief “Inappropriate”)
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,
Sentencing Review: New Factor – Assistance to Law Enforcement – Reduced Threat – Adolescent Brain Development Research
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.”
Identity Theft – Sufficiency Of Evidence; Restitution – Substantial Factor
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court of appeals decision (not recommended for publication); for Clacks: Jefren E. Olsen, SPD, Madison Appellate; case activity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,
Evidence Excluded from Case-in-Chief for Discovery Violation Admissible on Rebuttal; Appellate Review: Omitted Transcript Presumed to Support Discretionary Trial Court Ruling; Sleeping Juror
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.
Traffic Stop – Duration
State v. John R. Nelson, 2011AP125-CR, District 2, 12/7/11
court of appeals decision (1-judge, not for publication); for Nelson: John A. Nelson; case activity
The officer’s observation that Nelson’s vehicle intruded “somewhat into the intersection” before stopping provided reasonable suspicion for a stop-sign violation, § 346.46(1). The stop wasn’t unnecessarily prolonged by summoning a drug dog while the officer ran record checks and issued a warning ticket.
State v. Roshawn Smith, 2010AP1192-CR, rev. granted 12/1/11
on review of unpublished decision; for Smith: William E. Schmaal, SPD, Madison Appellate; case activity; prior post
Sufficiency of Evidence (Possession with Intent to Deliver) – Circumstantial Evidence Standard of Review /
Stipulation (Offense Element) – Right to Jury Trial
Issues (from Smith’s PFR):
1. The Trial Evidence Was Insufficient to Support Smith’s Conviction of Possessing a Controlled Substance (THC) With Intent to Deliver,
Discovery Violation, § 971.23(1)(g) – Prejudice
State v. Joseph Hammer, 2010AP3019-CR, District 1, 11/22/11
court of appeals decision (not recommended for publication); for Hammer: Rex Anderegg; case activity
The State’s conceded discovery violation (failure to produce reports or photographs related to a trajectory rod investigation) prejudiced the defense and therefore entitles Hammer to a new trial on two counts of attempted first-degree intentional homicide: 1. the erroneously admitted trajectory rod evidence “severely undermined”
Interest-of-Justice Review: Post-Trial Revelations Undermining State’s Witnesses
State v. Kenneth M. Davis, 2011 WI App 147 (recommended for publication); for Davis: Robert R. Henak; case activity; reissuance after prior decision withdrawn
Several items of testimony, coming to light after trial, directly contradict the trial testimony of the main State’s witnesses, leading the court to conclude that the real issue in controversy – Davis’s alleged involvement in a drug-house robbery and murder of an occupant –
Newly Discovered Evidence: New Forensic Method, Photogrammetric Analysis; Interest-of-Justice Review
State v. Brian K. Avery, 2011 WI App 148 (recommended for publication), supreme court review granted, 2/23/12; for Avery: Keith A. Findley; case activity; prior 974.06 appeal: 2008AP500-CR; direct appeal: 1997AP317
Newly Discovered Evidence – New Forensic Method – Photogrammetric Analysis
Expert photogrammetric opinion, derived from video enhancement technology (“VISAR”) not commercially available until after Avery’s trial,
Sexual Assault; Charging Document; Excited Utterances; Newly Discovered Evidence
State v. Dion M. Echols, 2010AP2626-CR, District 1, 9/27/11
court of appeals decision (not recommended for publication); for Echols: Amelia L. Bizzaro; case activity
Evidence held sufficient to establish “great bodily harm” element of 1st-degree sexual assault, § 940.225(1)(a), where the harm was inflicted a short time after the assault.
¶23 In this case, the trial court properly determined that Echols’ shooting M.F. subsequent to the nonconsensual sexual contact constituted great bodily harm.