On Point blog, page 61 of 71
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court of appeals decision (3-judge; not recommended for publication)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,
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,
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. John C. Berard, 2008AP 3187-CR, Dist II, 2/3/10
court of appeals decision (not recommended for publication); Resp Br. (Berard); Reply (State)
Counsel – Conflict of Interest – Prior Representation in Unrelated Case
“Berard’s postconviction showing that Peter B. was Attorney Smith’s former client in an unrelated case and that he wanted to pin his charged crimes on Peter B. does not equate to a showing of an actual conflict of interest.
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,
Village of Butler v. Levarn Clay, 2009AP1763, Dist II, 1/13/10
court of appeals decision (1-judge; ineligible for publication)
Sanctions – Defendant’s Failure to Appear – Default Judgment
Court not empowered to enter default judgment in civil claim where defendant appears by counsel but not in person; odd discussion of “puerile” “tactic of some traffic defense lawyers to make the government prove identity without the defendant being in the courtroom.”
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.