On Point: K. Standards of Review

on review of unpublished decision; for Smith: William E. Schmaal, SPD, Madison Appellate; case activity; prior post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,

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court of appeals decision (not recommended for publication); for Hammer: Rex Anderegg; case activity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”

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WI App 147 (recommended for publication); for Davis: Robert R. Henak; case activity; reissuance after prior decision withdrawn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 –

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,

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court of appeals decision (not recommended for publication); for Echols: Amelia L. Bizzaro; case activity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.  

State v. Daniel R. Doyle, 2010AP2466-CR, District 4, 9/22/11

court of appeals decision (1-judge, not for publication); for Doyle: John C. Orth; case activity

Transport of drunk driving suspect 3-4 miles to local police station for purpose of administering field sobriety tests didn’t covert Terry stop into arrest, given that extreme, adverse weather conditions rendered impractical such testing at the scene.

¶11      Terry is codified in Wis.

seventh circuit court of appeals decision; cert granted, 4/30/12

Padilla v. Kentucky: Retroactivity – Habeas Review 

The holding of Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010), that as in incident of effective representation, “counsel must inform her client whether his plea carries a risk of deportation,” is a “new rule”

State v. Olu A. Rhodes, 2011 WI 73, reversing unpublished COA decision; for Rhodes: John J. Grau; case activity

Although the State’s theory of motive was that Rhodes intentionally shot and killed the victim in retaliation for beating Rhodes’ sister the day before, the trial court reasonably precluded cross-examination of the sister on a prior instance where the victim severely beat her without response from Rhodes.

State v. David D. Funk, 2011 WI 62, reversing unpublished summary disposition; for Funk: Michele Anne Tjader; case activity

Juror Bias – Assessment, Generally

A claim of juror bias relies requires proof of the two-step test articulated by State v. Wyss, 124 Wis. 2d 681, 726, 370 N.W.2d 745 (1985): “(1) that the juror incorrectly or incompletely responded to a material question on voir dire;

State v. Alan Adin Randall, 2011 WI App 102 (recommended for publication); for Randall: Brian Kinstler, Craig S. Powell; case activity; prior history: State v. Randall, 192 Wis. 2d 800, 532 N.W.2d 94 (1995) (“Randall I”); State v. Randall, 222 Wis. 2d 53, 586 N.W.2d 318 (Ct.