On Point blog, page 37 of 49
Reasonable Suspicion – Investigatory Stop; Field Sobriety Testing; Citing Unpublished Opinions
State v. Allen L. Resch, 2010AP2321-CR, District 2, 4/27/11
court of appeals decision (1-judge, not for publication); for Resch: Christopher Lee Wiesmueller, Corinne N. Wiesmueller; case activity
Reasonable suspicion supported investigatory stop for possible burglary, where vehicle was parked in private business parking lot at 2:26 a.m., with engine running and lights off.
¶13 Specifically, as the trial court indicated, the time of day is an important factor in determining whether a law enforcement officer had a reasonable suspicion.
Binding Authority: Overruled Court of Appeals Decision
Adam Martine v. Quentin J. Williams, 2011 WI App 68 (recommended for publication); case activity
¶13 Prior to last year, this court applied a general rule regarding court of appeals’ cases reversed by the supreme court that “holdings not specifically reversed on appeal retain precedential value.” Blum v. 1st Auto & Cas. Ins. Co., 2010 WI 78, ¶44, 326 Wis. 2d 729, 786 N.W.2d 78 (citation omitted).
Complaint – Sufficiency; Standard of Review – Transcripts not in Record
State v. Michael L. Gengler, 2010AP1999, District 2, 4/6/11
court of appeals (1-judge, not for publication); pro se; case activity
¶6 The trial court determined that the complaint and the amended complaint were proper, stating,
The complaint was duly sworn on oath. The complaint was signed and filed by an assistant district attorney as prescribed by WIS. STAT. § 968.02(1). The complaint alleges multiple violations of WIS.
Effect, Overruled Decision
Richardson v. Henderson, 2010AP1765, District 2, 3/9/11
court of appeals decision (1-judge, not for publication); case activity
¶7, n.4:
Our supreme court has held that “when the supreme court overrules a court of appeals decision, the court of appeals decision no longer possesses any precedential value, unless this court expressly states otherwise.” Blum v. 1st Auto & Cas. Ins. Co.
Sanctions
City of Shawano v. Darlene F. Sense, 2010AP2193-FT, District 3, 2/8/11
court of appeals decision (1-judge, not for publication); case activity; Memo Br.; Memo Resp.; Memo Reply
¶10 As a final matter, we address certain deficiencies in Sense’s appellate brief. First, Sense’s repeated references to “appellant” and “respondent” throughout her brief violate WIS. STAT. RULE 809.19(1)(i), which requires reference to the parties by name,
Confrontation – Generally – Forfeiture by Wrongdoing – Harmless Error; Other Acts Evidence: Pornography (& Intent to Kill); Consent to Search; Judicial Bias
State v. Mark D. Jensen, 2011 WI App 3; prior history: 2007 WI 26; for Jensen: Terry W. Rose, Christopher William Rose, Michael D. Cicchini; case activity; (Jensen BiC not posted); State Resp.; Jensen Reply
Confrontation – Generally
The Confrontation Clause regulates testimonial statements only, such that nontestimonial statements are excludable only under hearsay and other evidence-rule ¶¶22-26,
Jury – Deliberations – Sequestration
State v. Bradley A. Brandsma, 2010AP1429-CR , District 4, 12/23/10
court of appeals decision (1-judge, not for publication); for Brandsma: Anthony J. Jurek; case activity; Brandsma BiC; State Resp.; Reply
Trial courts have “very broad discretion” under § 972.12 to allow a deliberating jury to separate overnight before returning to resume deliberations; court of appeals rejects argument under state and federal constitutions “a circuit court should presume that any separation of a jury renders that jury impartial in light of rapidly changing modes and content of publicly available information,”
Evidence – Ongoing Conflict with Deceased, Hearsay – Residual Exception, 3rd-Party Guilt; Sufficiency of Evidence – Homicide
State v. Kevin M. Moore, 2009AP3167-CR, District 2, 12/15/10
court of appeals decision (3-judge, not recommended for publication); for Moore: Jeffrey W. Jensen; Moore BiC; State Resp.; Reply
Evidence – Frequenting “Gentleman’s Club” as Source of Friction with Deceased
Evidence that Moore spent much time and money at a local “gentleman’s club,” offered by the State to as support for an “ongoing conflict”
Warrantless Blood Draw – Driving under Influence of Drugs
State v. Travis J. Malinowski, 2010AP1084-CR, District 3, 11/30/10
court of appeals decision (1-judge, not for publication); for Malinowski: Chad A. Lanning; Malinowski BiC; State Resp.; Reply
Exigent-circumstances doctrine supports warrantless blood draw of person arrested for driving under the influence of drugs, no less than under the influence of alcohol, State v. Bohling, 173 Wis.
Newly Discovered Evidence: Test – SVP Commitment – Revised Actuarial; Completeness Doctrine, § 901.07; Interest of Justice Review
State v. Richard D. Sugden, 2010 WI App 166 (recommended for publication); for Sugden: Donald T. Lang, SPD, Madison Appellate; Sugden BiC; State Resp.; Reply
Newly Discovered Evidence – Test – Generally
¶14 In order to be entitled to a new trial based on newly discovered evidence, Sugden must prove by clear and convincing evidence that (1) the evidence is,