On Point: b. Not found

State v. Mark J. Libecki, 2013 WI App 49; case activity

Self-incrimination — waiver of right to exclude immunized testimony and evidence; no need for personal colloquy

In this case the court of appeals holds that when a defendant waives the right to exclude at trial immunized testimony or evidence derived from that testimony, the circuit court need not engage in a personal colloquy with the defendant on the record,

State v. Gloria C., 2012AP1693 and 2012AP1694, District 1, 2/5/13; court of appeals decision (1-judge, ineligible for publication); case activity

Trial counsel was not ineffective for failing to object to the opinion testimony of the parent’s ongoing case manager, who said that based on the parent’s conduct in the preceding two years, she would not be able to meet the conditions necessary for the return of her children within nine months.

State v. Stephen Lehman, 2011AP2821-CR, District I (not recommended for publication).   Case activity.

Lehman pled guilty to 2 counts of burglary of a dwelling.  The trial court sentenced him to 5 years of initial confinement and 3 years of extended supervision for each count.  The court ran the sentences consecutively, ordered Lehman to pay $1,700 in restitution, and declared him ineligible for the Challenge Incarceration and Earned Release programs.  

State v. Robert Edwin Burkhardt, 2009AP2174-CR, District 1/4, 12/6/12

court of appeals decision (not recommended for publication); case activity

Search & Seizure – Consent 

Consent to search isn’t vitiated by nonpretextual threat to obtain a search warrant:

¶16      … (I)t is well established that, “[t]hreatening to obtain a search warrant does not vitiate consent if ‘the expressed intention to obtain a warrant is genuine … and not merely a pretext to induce submission.’”  Artic,

State v. Ouati K. Ali, 2011AP2169, District 4, 11/1/12

court of appeals decision (not recommended for publication); case activity

Postconviction Proceedings – Right to Counsel 

A defendant has no constitutional right to counsel outside the direct appeal period, therefore Ali’s argument that failure to appoint counsel counsel to pursue DNA testing deprived him of due process is a non-starter.

¶12      Ali does not claim that the public defender erroneously exercised its discretion in declining to appoint him counsel for the purpose of pursuing his motion for postconviction DNA testing.  

Veronica K. v. Michael K., 2012AP197, District 1, 10/10/12

court of appeals decision (1-judge, ineligible for publication); case activity

Michael K., incarcerated at the time of this TPR trial, appeared by audio-video hookup. He argues that his due process right to meaningful participation, State v. Lavelle W., 2005 WI App 266, ¶2, 288 Wis. 2d 504, 708 N.W.2d 698, in light of his numerous contemporaneous complaints he couldn’t hear the proceedings. 

seventh circuit court of appeals decision

Habeas Review – IAC/Suppression Claim, Generally 

Under Strickland, Rann must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Grosshans, 424 F.3d at 590 (citing Strickland, 466 U.S. at 687). When reviewing claims of ineffective assistance of counsel in habeas petitions, however, we must honor any reasonable state court decision,

Jackson Co. DHS v. Robert H., 2011AP2783, District 4, 7/17/12

court of appeals decision (1-judge, ineligible for publication); case activity

Both federal and state Indian Child Welfare Acts require that termination of parental rights to an Indian child be supported by testimony of a qualified expert witness “that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child,” 25 U.S.C.

State v. Herbert Ambrose Darden, 2011AP883-CR, District 4, 5/3/12

court of appeals decision (not recommended for publication); for Darden: Angela Conrad Kachelski; case activity

Trial counsel correctly construed the holding of State v. Miller, 231 Wis. 2d 447, 460, 605 N.W.2d 567 (Ct. App. 1999):

¶16      This is not the first time that we have been asked to determine whether or not Miller created a bright-line rule that evidence of flight is inadmissible if there is an independent explanation for the flight that cannot be explained to the jury.  

State v. Thaying Lor, 2011AP2019-CR, District 1, 5/1/12

court of appeals decision (not recommended for publication); for Lor: Benjamin F. Gallagher; case activity

Effective Assistance of Counsel 

Counsel did not provide ineffective representation in the following respects:

• Failure to timely file motion seeking admission of complainant’s prior untruthful allegation of sexual assault. However, Lor did not provide, including in his postconviction motion,