On Point blog, page 50 of 55
Kenneth E. Gentry v. Sevier, 7th Circuit App. No. 08-3574, 2/26/10
Terry Stop / Frisk
1. Pulling up in a patrol car and telling Gentry to keep his hands up amounted to a stop for purposes of Terry analysis.
2. The stop, which was based on a report of a “suspicious person,” without reference to any specific facts concerning a crime, was not supported by reasonable suspicion to believe Gentry had either committed a crime or was armed.
State v. Clifford Dewayne Walker, 2008AP3180-CR, District I, 3/9/10
court of appeals decision (3-judge; not recommended for publication); Resp. Br; Reply Br
Exculpatory Material
Defense had access to assertedly suppressed exculpatory material, hence no Brady violation.
Effective Assistance
Counsel had valid tactical reason for cross-examination approach; failure to file discovery demand, object to certain testimony: “The defendant must affirmatively prove prejudice. … Walker has not even attempted to do so.
State v. Amonte Antoine Jackson, 2008AP3183-CR, District I, 3/9/2010
court of appeals decision (3-judge; not recommended for publication)
Machner Hearing
Postconviction motion conclusory, didn’t require Machner hearing on effective assistance.
Recusal
Judicial comments reflecting attempt to get Jackson to tell truth in connection with asserted problems with lawyer didn’t establish judicial bias.
Sentencing
Sentence taking into account primary factors and much less than maximum penalty not erroneous exercise of discretion.
State v. Alexander Marinez, 2010 WI App 34
court of appeals decision; for Marinez: David Leeper; BiC; Resp. Br.; Reply Br.
Appellate Procedure – Waiver and Effective Assistance of Counsel
¶12 n. 12:
Although Marinez argues ineffective assistance of counsel, he also asks that we review his statutory and due process arguments directly. He cites to State v. Anderson, 2006 WI 77,
Julian Lopez v. Thurmer, 7th Cir No. 08-2110, 2/5/10
7th Circuit decision, denying relief in: Wis COA No. 2003AP1885
Habeas – Effective Assistance of Counsel – Lesser Included Instruction
Given state court conclusion that Lopez was not entitled to lesser offense instruction on felony-murder, counsel could not have been ineffective for failing to request the instruction. Nor was the absence of the instruction “a fundamental miscarriage of justice,” because there is no showing “that Lopez probably would have been acquitted of first-degree intentional murder.”
State v. Marvin L. Beauchamp, 2010 WI App 42
court of appeals decision, affirmed, 2011 WI 27; for Beauchamp: Martin E. Kohler, Craig S. Powell; case activity
Dying Declaration, § 908.045(3)
¶8 … dying declaration, codified in Wisconsin Stat. Rule 908.045(3): “A statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be the declarant’s impending death.” Under established law,
State v. Jeffrey A.W., 2010 WI App 29
court of appeals decision; for Jeffrey A.W.: Hans P. Koesser
Resp Br; Reply
Counsel – Adequacy of Investigation
Attempt to demonstrate absence of herpes in defendant—an issue central to this sexual assault prosecution—was, although failure, not product of deficient performance, ¶12:
There is no question that trial counsel’s investigation yielded the wrong information. But that does not necessarily equate to deficient performance.
State v. Jennifer Z., 2009AP846, Dist III, 1/12/10
court of appeals decision (1-judge; not for publication)
Delinquency – Venue
Delinquency venue is where the juvenile resides, § 938.185(1)(a), which is where the legal custodian establishes the child’s domicile; legal custodian of Jennifer Z. was Taylor Co. Human Services, therefore she resided in Taylor Co.
Ineffective Assistance of Counsel – Eliciting Incriminating Testimony
Counsel’s eliciting incriminating testimony, without tactical reason, leading to added count was ineffective.
Counsel: Failed but Adequate Investigation; Interest-of-Justice Review: Critical Evidence (Absence of Herpes) Not Heard by Jury
State v. Jeffrey A.W., 2010 WI App 29; for Jeffrey A.W.: Hans P. Koesser
Adequacy of Counsel Investigation
Counsel’s attempt to demonstrate the absence of herpes in the defendant—an issue central to this sexual assault prosecution—was, although a failure, not the product of deficient performance.
¶12 There is no question that trial counsel’s investigation yielded the wrong information. But that does not necessarily equate to deficient performance.