On Point blog, page 254 of 484
OWI — the penalty language of § 346.65(2)(am)6. does not require the court to impose a bifurcated sentence
State v. Clayton W. Williams, 2013 WI App 74, petition for review granted 11/21/13; reversed, 2014 WI 64, 7/15/14; case activity
Wisconsin Stat. § 346.65(2)(am)6. makes OWI 7th, 8th, or 9th a Class G felony, but also provides that “[t]he confinement portion of a bifurcated sentence imposed on the person under s. 973.01 shall be not less than 3 years.”
First Amendment — Speech — “True Threats.” Stalking and extortion — sufficiency of the evidence
State v. James D. Hills, 2012AP1901-CR, District 4, 4/11/13; court of appeals decision (not recommended for publication); case activity
Hills sent letters and made at least one phone call to an assistant city attorney (ACA) who, he believed, had wrongfully prosecuted him under the city’s disorderly conduct ordinance. In those communications he berated the ACA (calling her incompetent, corrupt, dishonest, deceitful, worthless, and worse), accused her of prosecuting him with perjured testimony so she could collect money for the city,
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State v. Alvernest Floyd Kennedy, 2012AP523-CR, District 1, 4/9/13, court of appeals decision (not recommended for publication), petition for review granted 2/19/14, affirmed, 2014 WI 132; case activity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.