On Point: 8. Counsel, 6th Am.

State v. Robert L. Brinson, 2010AP001819-CR, District 1, 5/10/11

court of appeals decision (3-judge, not recommended for publication); for Brinson: Paul Bugenhagen, Jr.; case activity

Cautionary instruction cured any potential prejudice from revelation of prior record.

¶16      We disagree.  The trial court instructed the jury several times that it could not consider Brinson’s possible status as a probationer or parolee, or the fact that he spent time in jail,

State v. Calvin Jerome Pirtle, 2011 WI App 89(recommended for publication); for Pirtle: Christopher J. Cherella; case activity

Consent to Search – Georgia v. Randolph

Pirtle’s failure to object to the police presence allowed them to act on the co-tenant’s consent to a warrantless search under Georgia v. Randolph, 547 U.S. 103 (2006):

¶15      In Randolph,

State v. Shantell T. Harbor, 2011 WI 28, affirming unpublished decision; for Harbor: Joseph E. Redding; case activity

Sentence Modification – New Factor

The “new factor” test for sentence modification has split into “two divergent lines of cases”: Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975) (fact(s) highly relevant to, but not brought out at, 

State v. Marvin L. Beauchamp, 2011 WI 27, affirming 2010 WI App 42; for Beauchamp: Craig S. Powell; case activity

Confrontation – Dying Declaration, § 908.045(3)

¶34  We therefore, like every state court that has considered the dying declaration exception since Crawford, take a position consistent with the language of Crawford and Giles and decline to hold that the constitutional right to confront witnesses is violated by the admission of statements under the dying declaration hearsay exception. 

State v. Brad E. Forbush, 2011 WI 25, reversing 2010 WI App  11; for Forbush: Craig A. Mastantuono, Rebecca M. Coffee; amicus: Colleen D. Ball, SPD, Milwaukee Appellate; case activity

Forbush’s 6th amendment right to counsel had already attached – because a criminal complaint had been filed – and he had retained counsel before officers began interrogating him on that charge in the absence of his attorney.

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,

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. 

State v. George McGee, 2010AP3040-CR, District 3, 4/26/11

court of appeals decision (1-judge, not for publication); for McGee: Steven G. Richards; case activity

McGee’s collateral attack on a prior OWI conviction used to enhance his present sentence is necessarily limited to denial of the constitutional right to counsel, ¶5. Although McGee represented himself in the challenged prior, he failed to show that his waiver of counsel was invalid.

Albert Price v. Thurmer, 7th Cir No. 09-3851, 4/18/11

7th circuit court of appeals decision, on remand after prior appeal, 514 F.3d 729, denying relief on review of unpublished decision of Wis COA

Habeas – IAC – NGI Defense

Trial counsel seemingly mishandled the court-appointed NGI expert, in failing to cure the latter’s apparent misapprehension that he couldn’t rely on eyewitness reports of Price’s behavior absent determination of their credibility by the trial judge.

Cullen v. Scott Lynn Pinholster, USSC No. 09-1088, 4/4/11

We first consider the scope of the record for a §2254(d)(1) inquiry. The State argues that review is limited to the record that was before the state court that adjudicated the claim on the merits. Pinholster contends that evidence presented to the federal habeas court may also be considered. We agree with the State.

…

We now hold that review under §2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.