On Point blog, page 4 of 6
State v. Stephen A. Broad, 2009AP1983-CR, District II, 3/17/2010
court of appeals decision (1-judge, not for publication) BiC; Resp. Br.; Reply Br.
Traffic Arrest
Probable cause to believe Broad drove on public roadway, hence to arrest for OWI, where car was found off the road, Broad was in driver’s seat and admitted to being driver, car “was warm and running.”
Right to Testify
Violation of rule requiring contemporaneous colloquy as to waiver of right to testify at trial doesn’t lead to automatic reversal of conviction;
State v. Brandon J. Carter, 2010 WI App 37
court of appeals decision; for Carter: Melinda A. Swartz, SPD, Milwaukee Appellate; Resp. Br.; Reply Br.
Ex Parte Judicial Questioning, Pretrial Proceeding
Pretrial judicial questioning of a witness at return of a bench warrant worked deprivation of the defendant’s rights to counsel and presence at trial when the witness was subsequently impeached with statements she made during that exchange, ¶¶17-21. The error, though occurring but once and limited to impeachment,
State v. Tom L. Garcia, 2010 WI App 26
court of appeals decision; for Garcia: Paul M. Ruby
Defendant’s Right to Testify – After-the-Fact Evidentiary Hearing on Required Colloquy
Although a colloquy is required by State v. Weed, 2003 WI 85 before the defense rests without testimony from the defendant, failure to conduct the colloquy doesn’t automatically result in new trial but, rather, supports postconviction evidentiary hearing procedure.
¶14 The supreme court in Weed mandated a simple colloquy for courts to employ when a defendant chooses not to testify at trial.
State v. Brad E. Forbush, 2010 WI App 11; review granted 3/16/10
court of appeals decision, review granted 3/16/10; for Forbush: Craig A. Mastantuono, Rebecca M. Coffee
Post-Charge Assertion of Right to Counsel during Interrogation
The mere fact that an attorney represents a defendant formally charged with a crime doesn’t bar the police from questioning the defendant; State v. Todd Dagnall, 2000 WI 82 (“Dagnall was not required to invoke the right to counsel in this case because he had been formally charged with a crime and counsel had been retained to represent him on that charge,” ¶4),
Search & Seizure – Applicability of Exclusionary Rule – Dog Sniff, Wisconsin Constitution
State v. Ramon Lopez Arias, 2008 WI 84, on Certification
For Arias: Lora B. Cerone, SPD, Madison
Issue/Holding: A dog sniff is no more a “search” under the Wisconsin than the U.S. Constitution, at least with respect to vehicles:
¶22 We are unwilling to undertake such a departure here. First, we note that there is no constitutionally protected interest in possessing contraband under the United States Constitution,
Wisconsin Constitution – Construction – Construction – “New Federalism” – Art. I, § 11 Generally Follows Fourth Amendment Jurisprudence
State v. Ramon Lopez Arias, 2008 WI 84, on Certification
For Arias: Lora B. Cerone, SPD, Madison
Issue/Holding:
¶20 Historically, we have interpreted Article I, Section 11 of the Wisconsin Constitution in accord with the Supreme Court’s interpretation of the Fourth Amendment. See, e.g., State v. Malone, 2004 WI 108, ¶15, 274 Wis. 2d 540,
Wisconsin Constitution – Construction – “New Federalism” – Art. I, § 11 Generally Follows Fourth Amendment Jurisprudence
State v. Todd Lee Kramer, 2009 WI 14, affirming 2008 WI App 62
For Kramer: Stephen J. Eisenberg, Marsha M. Lysen
Issue/Holding:
¶18 Historically, we generally have interpreted Article I, Section 11 to provide the same constitutional guarantees as the Supreme Court has accorded through its interpretation of the Fourth Amendment. Arias, 311 Wis.
Warrants – No-Knock: Unannounced Entry, not Authorized by Warrant but Permissible Where Target not Inside
State v. Thomas William Brady, 2007 WI App 33, PFR filed 2/13/07
For Brady: Suzanne L. Hagopian, SPD, Madison Appellate
Issue/Holding: Where the target of a search was not at home when the police forcibly entered pursuant to a search warrant, their unannounced entry did not, although not authorized by the warrant, violate the fourth amendment.
¶13 The first consideration is the safety of the police and others.
§ 941.23, CCW – As-Applied Constitutionality, in Light of Wis. Const. Art. I, § 25 – Tavern Owner, Gun in Car Console
State v. Scott K. Fisher, 2006 WI 44, on certification
For Fisher: Paul B. Millis
Issue: Whether the right to bear arms provision of Wis. Const. Art. I, § 25 countenances prosecution for carrying a concealed weapon in a car’s console by a tavern owner who asserted its necessity for security purposes in that he routinely transported large amounts of cash.
Holding:
¶5 … (W)e conclude that § 941.23 is constitutional as applied to Fisher because his interest in exercising his right to keep and bear arms for purposes of security by carrying a concealed weapon in his vehicle does not substantially outweigh the state’s interest in enforcing § 941.23.…
¶18 … Defendants have the burden of proof.
Wisconsin Constitution – Construction – “New Federalism” – Art. I, § 11: “Actually Yielded to Authority” Test for Seizure
State v. Charles E. Young, 2006 WI 98, affirming 2004 WI App 227
For Young: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
¶19 … (T)his court ordinarily adopts and follows the Fourth Amendment jurisprudence of the United States Supreme Court.…
¶27 Young, however, argues that we should reject Hodari D. and interpret Article I,