On Point blog, page 248 of 484
Refusal — sufficiency of evidence that officer conveyed implied consent warnings
State v. Randel R. Clark, 2012AP2661, District 4, 7/25/13; court of appeals decision (1-judge; ineligible for publication); case activity
The record supports the circuit court’s conclusion that the police officer used reasonable means to convey the necessary implied consent warnings to Clark under the standard in State v. Piddington, 2001 WI 24, ¶24, 241 Wis. 2d 754, 623 N.W.2d 528, despite Clark’s claims he couldn’t hear the officer,
TPR — continuing CHIPS; sufficiency of the evidence that parent will likely not meet the required conditions for return of the child
Kenosha County DHS v. Debra S.A., 2013AP318, District 2, 7/24/13; court of appeals decision (1-judge; ineligible for publication); case activity
In a fact-dependent decision that applies the well-established sufficiency standard (¶10), the court concludes the evidence at the fact-finding hearing permitted the trier of fact to conclude that Debra had not complied with requirements that she actively participate in mental health services and successfully complete and demonstrate an understanding of the principles taught in a parenting program and that she would not meet these conditions within nine months.
Self-incrimination — requiring defendant to show physical characteristic to jury. Closing argument — state’s reference to defendant’s failure to call witnesses. Prior inconsistent statement — witness’s lack of recollection
State v. Ramon G. Gonzalez, 2012AP1818-CR, District 1, 7/23/13; court of appeals decision (not recommended for publication), petition for review granted, 1/19/14, affirmed, 2014 WI 124; case activity
Self-incrimination — requiring defendant to show physical characteristic to jury
Where inmate victim of battery by another prisoner identified one of his assailants as an inmate “with platinum teeth”
TPR: Waiver of jury and stipulation to elements doesn’t survive subsequent appeal, reversal, and remand
Walworth County DH&HS v. Roberta J.W., 2013 WI App 102; consolidated case activity: 2012AP2387; 2012AP2388
The County petitioned to terminate Roberta’s parental rights in 2007 on the grounds her children were in continuing need of protection and services. After a jury trial and dispositional hearing her rights were terminated, but on appeal the termination order was reversed and remanded for a new fact-finding hearing. (¶4).
Joinder — multiple incidents of armed robbery, two of which also involved homicide. Identification — suggestiveness of photo array
State v. Deontaye Terrel Lusk, 2012AP587-CR, 2012AP588-CR, 2012AP589-CR, & 2012AP590-CR, District 1, 7/16/13; court of appeals decision (not recommended for publication); case activity: 2012AP587-CR; 2012AP588-CR; 2012AP589-CR; 2012AP590-CR
Joinder
Lusk was charged in four cases with crimes arising from five armed robberies and one attempted armed robbery that occurred in April, May, June, and July, 2009. In two of the robberies the victim was killed,
Search and seizure — validity of search warrant: staleness of probable cause; overbreadth
State v. Diane M. Millard, 2012AP2646-CR, District 2, 7/17/13; court of appeals decision (1-judge; ineligible for publication); case activity
A search warrant was supported by probable cause because the two events cited in the warrant request–a controlled heroin buy in January 2011 and a garbage search in July 2011 revealing “a small, circle shaped screen with burnt [THC] residue on it” (¶2)–were not too far apart in time or too distinct in nature:
¶9 Regarding the staleness challenge,
Enhancer time may be added to extended supervision portion of bifurcated sentence for misdemeanor enhanced under § 939.62
State v. Shawn J. Robinson, 2012AP2498-CR, District 1, 7/23/13; court of appeals decision (1-judge; ineligible for publication); case activity
Robinson was convicted of two misdemeanors which were enhanced under the repeater statute, § 939.62(1)(a). He was sentenced on each count to bifurcated sentences consisting of one year of confinement and one year of extended supervision. (¶¶2-4). He later challenged the sentences under State v.
Postconviction motion under § 974.06 challenging enhanced misdemeanor sentence is barred because issue was not raised in previous postconviction motion
State v. Zackory J. Kerr, 2013AP273-CR, District 1, 7/23/13; court of appeals decision (1-judge; ineligible for publication); case activity
Kerr was sentenced to one year of confinement and one of extended supervision, consecutive to any other sentence. Shortly after sentencing he unsuccessfully challenged the circuit court’s subject matter jurisdiction. (¶¶2-4). A few years later he moved for sentence modification based on State v. Gerondale,
Exposing genitals to a child, § 948.10, is limited to situations involving face-to-face contact and therefore doesn’t cover “sexting”
State v. Zachary P. Stuckey, 2013 WI App 98; case activty
The court of appeals concludes that the prohibition in § 948.10 against exposing genitals to a child is a “variable obscenity” statute, and to avoid unconstitutional application it must be read to require proof the defendant knew he was exposing himself to someone under the age of 18. Because the statute does not explicitly include that element,
Guest Post: Marcus Berghahn on the Court of Appeals decision upholding the use of hearsay at preliminary hearings
State v. Martin P. O’Brien, State v. Kathleen M. O’Brien, and State v. Charles E. Butts, 2013 WI App 97.
As briefly noted in a previous post, the Court of Appeals has upheld Wis. Stat. § 970.038, which makes hearsay admissible at preliminary hearings and allows bindover based solely on hearsay. On Point is pleased to present this guest post about the decision by Attorney Marcus Berghahn,