On Point blog, page 253 of 483
Terry stop — reasonableness of length of detention. Arrest — probable cause. Newly discovered evidence. Ineffective assistance of counsel.
State v. Alvernest Floyd Kennedy, 2012AP523-CR, District 1, 4/9/13, court of appeals decision (not recommended for publication), petition for review granted 2/19/14, affirmed, 2014 WI 132; case activity
Terry stop — reasonableness of length of detention; arrest –probable cause
Kennedy was the driver of a car that struck a pedestrian. (¶¶3-5). After about 30 minutes on the scene investigating the incident,
TPR — consent to termination; voluntariness
Florence County DHS v. Jennifer B., 2012AP2314, 2012AP2315, and 2012AP2316, District 3, 4/9/13; court of appeals decision (1-judge, ineligible for publication); case activity: 2012AP2314; 2012AP2315; 2012AP2316
Jennifer’s consent to terminate her parental rights to her older children was knowing and voluntary despite the fact she received “advice” from numerous people that consenting to termination for those children might help her get back her youngest child who was in foster care in Michigan.
Jury instruction — erroneously instructing jury that defendant in forfeiture case is presumed innocent
City of West Allis v. Robert C. Braun, 2012AP1199, District 1, 4/9/13; court of appeals decision (1-judge, ineligible for publication); case activity
The trial court erroneously instructed the jury in a municipal forfeiture case that the defendant was presumed innocent, and the City is therefore entitled to a new trial:
¶12 Here, the circuit court seemed to combine both instructions [Wis. J.I.-Criminal 140 and 140A] by informing the jury that Braun was presumed innocent and that the City had the burden of proving,
Rape Shield Law — prior sexual activity between defendant and complainant; relevance to fact in issue; probative value outweighing prejudice
State v. Muhammad Sarfraz, 2013 WI App 57, petition for review granted 9/17/13; case activity
The circuit court erroneously excluded evidence of prior sexual activity between Sarfraz and I.N., the complainant. She alleged Sarfraz, wearing a mask and saying he was the landlord, knocked on the door of her apartment, came in when she opened the door, and forcibly engaged in sexual intercourse with her.
Automobile exception to warrant requirement — probable cause to search trunk based on evidence found in passenger compartment
State v. Andrew Alexander Jackson, Jr., 2013 WI App 66; case activity
The circuit court erred in suppressing marijuana found in the trunk of Jackson’s car because there was probable cause to search the trunk based on the discovery of marijuana residue, $1,961 in cash, and a digital scale in the passenger compartment of the car:
¶10 Like in [United States v.] Ross,
New trial ordered due to erroneous evidentiary rulings that excluded school disciplinary records relevant to impeaching the complainant and admitted Haseltine-type evidence
State v. Gene A. Echols, 2013 WI App 58; case activity
Echols is entitled to a new trial on charges of child sexual assault because the trial court erred in prohibiting evidence relating to the complainant’s motive to fabricate the assault and in admitting testimony from Echols’s employer that he only stutters when he is lying.
Erroneous ruling excluding complainant’s school disciplinary records
A fifteen-year-old student alleged that Echols,
Jury – selection – “Batson” claim; prosecutor’s failure to provide neutral explanation for striking Native American juror
State v. Karen Lynn Snow, 2012AP2323-CR, District 4, 4/4/13; court of appeals decision (1-judge, not eligible for publication); case activity
Applying the three-part, burden shifting test for Batson claims, see State v. Lamon, 2003 WI 78, ¶28, 262 Wis. 2d 747, 664 N.W.2d 607, the court of appeals concludes the circuit court erred in rejecting Snow’s objection to the prosecutor’s peremptory strike of Whiteeagle,
Arrest – police officer acting outside his jurisdiction under § 66.0313(2)
State v. Michael E. Zinke, 2012AP2087-CR, District 4, 4/4/13; court of appeals decision (1-judge, ineligible for publication); case activity
The stop and arrest of Zinke by a police officer well outside his jurisdiction was proper under a mutual aid statute, § 66.0313(2), even though the officer was “miles away” from his jurisdiction and initiated contact with the agency that had jurisdiction.
These are the facts: A Village of Westfield police officer was traveling on a county highway in Marquette County when he observed a vehicle repeatedly deviating from its designated lane.
Miranda custody; “private safety” exception to Miranda
State v. Corey J. Uhlenberg, 2013 WI App 59; case activity
Miranda custody
Uhlenberg was in “custody” during an interview at the police department, so the circuit court should have suppressed the statements Uhlenberg made during the interrogation after he requested an attorney:
¶11 Throughout its arguments, the State emphasizes the fact that the detective repeatedly told Uhlenberg that he was not under arrest.
Traffic stop – reasonable suspicion; good-faith mistake of fact
State v. Donald D. Laufer, 2012AP915, District 2, 4/3/13; court of appeals decision (recommended for publication); case activity
The officer’s erroneous reading of Laufer’s license plate, which caused the officer to wrongly believe that the plate might not be registered to the vehicle, nonetheless supported stop of the car under the good-faith rule, adopting the reasoning of State v. Reierson, No. 2010AP596, unpublished slip op.