On Point blog, page 6 of 10
“Evans-Thompson” Immunity – Derivative Use
State v. Joseph J. Spaeth, 2012 WI 95, on certification; case activity
Probationer’s statement, compelled by rules of his supervision, is covered by derivative as well as use immunity in a criminal prosecution.
¶3 We hold that the statement that Spaeth made to Oshkosh police was derived from the compelled, incriminating, testimonial statement that he made to his probation agent. Thus,
State v. Dennis D. Lemoine, 2010AP2597-CR, rev. granted 1/25/12
on review of unpublished opinion; for Lemoine: Donna L. Hintze, Katie R. York, SPD, Madison Appellate; case activity
Involuntary Statement – Coercion
Issue (composed by On Point):
Whether Lemoine’s in-custody statement was involuntary given the following police tactics:
- promising that in exchange for the “true story” he would not go to jail that night;
- telling him that he would not be able to contact an attorney while at the jail;
Involuntary Statement – Harmless Error
State v. Dennis D. Lemoine, 2010AP2597-CR, District 4, 9/15/11
court of appeals decision (not recommended for publication); for Lemoine: Donna L. Hintze, Katie R. York, SPD, Madison Appellate; case activity; supreme court review granted, 1/25/12
¶18 We agree with the trial court that the balance of the defendant’s personal characteristics against the tactics used by the police renders this is a “close case.” However,
Confessions: “Sew-Up” – Scrupulously Honored Silence – Voluntariness
State v. Devon L. Bean, 2011 WI App 129 (recommended for publication); for Bean: Scott D. Obernberger; case activity
Sew-up Confession
The fourth interrogation of Bean within a 60-hour period following his arrest did not, under the particular facts, amount to an impermissible “sew-up” confession.
General principles. The question, in brief, is whether the time between arrest and formal charge was “inordinate.”
Appellate Procedure: Waiver (Lesser Offense Instruction) – Binding Authority (Overruled Court of Appeals Decision); Counsel: Deficient Performance – Unsettled Law; Voluntary Statements; Adult Jurisdiction over Juvenile: Post-Trial Reverse Waiver Procedure Constitutional
State v. Darron D. Jackson, 2011 WI App 63 (recommended for publication); for Jackson: Rebecca Lawnicki; case activity
Waiver – Lesser Offense Instruction
The jury convicted Jackson of recklessly endangering safety while armed, which was submitted as a lesser offense of the charged offense, attempted first-degree intentional homicide. Although Jackson did object to the endangering instruction on the ground that it wasn’t supported by the facts,
Interest of Justice – Shaken Baby Syndrome; Confessions – Voluntariness
State v. Quentin J. Louis, 2009AP2502-CR, District 3, 3/15/11
court of appeals decision (not recommended for publication); for Louis: Edward J. Hunt; amicus, Wis. Innocence Project: Keith A. Findley, Peter Shawn Moreno; case activity
Trial court grant of new trial in interest of justice upheld as proper exercise of discretion: the issue in controversy wasn’t fully and fairly tried, given failure to adduce at trial medical testimony that the deceased baby’s injuries didn’t result from shaken baby syndrome.
State v. Joseph J. Spaeth, 2009AP2907-CR, review granted 2/8/11
on certification; for Spaeth: Shelley Fite, SPD, Madison Appellate; case activity
Issue (formulated by On Point):
Whether a statement made to law enforcement following a probationer’s honest accounting to his probation agent may derive from a “legitimate source wholly independent of compelled testimony” and therefore admissible in a criminal case, notwithstanding the promise of immunity for such statements when made to probation agents.
See prior post for further discussion.
State v. Joseph J. Spaeth, 2009AP2907-CR, District 2, 12/29/10
certification; for Spaeth: Shelley Fite, SPD, Madison Appellate; case activity; Spaeth BiC; State Resp.; Reply
ISSUE
In Kastigar v. United States, 406 U.S. 441, 453, 460 (1972), the United States Supreme Court held that the government may compel incriminating testimony so long as it comes with a grant of use and derivative use immunity—that is to say,
State v. Gregory M. Sahs, 2009AP2916-CR, District 1, 10/26/10, review granted 11/14/12
Voluntariness – Statements to Probation Officer
court of appeals decision (3-judge, not recommended for publication), supreme court review granted 11/14/12; for Sahs: Mark S. Rosen; BiC; Resp.
Sahs’ claim that his statements to his probation officer were given under compulsion is rejected, because the premise for the claim – a DOC form cautioning that he must reveal his activities else face probation revocation –
Compelled Self-Incrimination – Sentencing after Revocation
State v. Ronnie L. Peebles, 2010 WI App 156 (recommended for publication); for Peebles: Suzanne L. Hagopian, SPD, Madison Appellate; BiC; Resp.; Reply
Use, at Peebles’ sentencing after revocation, of his incriminating statements made during counseling ordered as a condition of probation, violated the 5th amendment and requires resentencing. The court canvasses the leading cases – State v.