On Point: K. Standards of Review

State v. Crystal P. Keith, 2010AP1667-CR, District 1, 5/24/11

court of appeals decision (not recommended for publication); for Keith: John A. Pray; case activity

On Keith’s conviction for reckless homicide in beating death of foster son, statements of her biological daughter (such as, “Why does mama have to go to jail for what my daddy did”) didn’t satisfy the test for newly discovered evidence. Keith’s confession to the police “was so detailed”

On Point is very pleased to publish this guest post by Attorney Michael B. Brennan, currently practicing with Gass Weber Mullins LLC, and formerly a Milwaukee County Circuit Court judge. Mr. Brennan offers his thoughts on the fractured decision of the supreme court in State v. Forbush, 2011 WI 25. On Point invites readers to submit comments to this post, in the box below.

As Dean Kearney pointed out in an interesting speech he gave to the Western District of Wisconsin bar association,

State v. Deshon C. Matthews, 2011 WI App 92 (recommended for publication); for Matthews: Paul G. Bonneson; case activity

Terry Stop – Reasonable Suspicion

Reasonable suspicion supported stop of Matthews, when police on patrol saw him wearing a ski mask and hoodie late at night in a high-crime area near a woman who was walking away form him and who appeared to be frightened.

State v. Isaac Hughes, Sr., 2011 WI App 87 (recommended for publication); for Hughes: Benbow P. Cheesman, Jr.; case activity

Conviction for escape, § 946.42(3), may be sustained even if the jury never actually saw the judgment of conviction that landed the defendant in custody.

¶12      We agree with the trial court that, when considered in light of all the other evidence adduced at trial,

State v. Donovan M. Burris, 2011 WI 32, reversing unpublished decision; for Burris: Byron C. Lichstein; case activity

Utter Disregard for Life – After-the-Fact Conduct

¶7   We conclude that, in an utter disregard analysis, a defendant’s conduct is not, as a matter of law, assigned more or less weight whether the conduct occurred before, during, or after the crime.  We hold that,

Columbia County v. Fred A. Ederer, 2010AP2369, District 4, 5/12/11

court of appeals decision (1-judge, not for publication); for Ederer: John Smerlinski; case activity

Ederer’s no contest plea waived his right to appeal suppression issue in this OWI-1st (therefore, civil) case. His reliance on County of Ozaukee v. Quelle, 198 Wis. 2d 269, 275-76, 542 N.W.2d 196 (Ct. App. 1995) (court should consider 4-factor test in determining whether to impose waiver bar) is misplaced:

¶5        Ederer acknowledges that Quelle was partially overruled on other grounds by Washburn County v.

State v. Jeffrey D. Walli, 2011 WI App 86 (recommended for publication); for Walli: Chad A. Lanning; case activity

Trial court factual findings made from a combination of live testimony and video evidence are reviewed deferentially, under the “clearly erroneous” standard of review; the court rejects de novo review of the video recording. Here, it is a police squad video of a traffic stop, with the officer testifying (and the trial court finding) that Walli in fact crossed the center line,

State v. Shantell T. Harbor, 2011 WI 28, affirming unpublished decision; for Harbor: Joseph E. Redding; case activity

Sentence Modification – New Factor

The “new factor” test for sentence modification has split into “two divergent lines of cases”: Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975) (fact(s) highly relevant to, but not brought out at, 

State v. Eliseo Peralta, 2011 WI App 81(recommended for publication); for Peralta: Martin J. Pruhs; case activity

Conspiracy, § 939.31 – “Overt Act”

The “overt act” element of conspiracy, though it must go “beyond mere planning and agreement,” may be “virtually any act,” even if “insignificant,” ¶¶19-21. Thus, Peralta’s “communication to an undercover police detective that a large quantity of cocaine was ready for immediate delivery”

State v. Brad E. Forbush, 2011 WI 25, reversing 2010 WI App  11; for Forbush: Craig A. Mastantuono, Rebecca M. Coffee; amicus: Colleen D. Ball, SPD, Milwaukee Appellate; case activity

Forbush’s 6th amendment right to counsel had already attached – because a criminal complaint had been filed – and he had retained counsel before officers began interrogating him on that charge in the absence of his attorney.