On Point: 46. WI Court of Appeals

State v. Demian Hyden McDermott, 2012 WI App 14 (recommended for publication); for McDermott: Robert R. Henak, Amelia L. Bizzaro; case activity

¶9 n. 2:

McDermott complains that the circuit court “erroneously exercised its discretion by its wholesale adoption of the State’s brief as its decision.”  (Most capitalization omitted.)  The sum total of the circuit court’s analysis in denying McDermott’s sentence-modification motion without first holding an evidentiary hearing is:  “For all of the reasons set forth in the State’s excellent brief,

State v. Demian Hyden McDermott, 2012 WI App 14 (recommended for publication); for McDermott: Robert R. Henak, Amelia L. Bizzaro; case activity

Sentencing Review – New Factor – Assistance to Law Enforcement 

McDermott, convicted in 1991 of first-degree intentional homicide, ptac with a parole eligibility date of 35 years, seeks new-factor-based modification of his PED on the ground “he helped law enforcement by participating in prison programs designed to dissuade youth from crime.”

State v. Anrietta M. Geske, 2012 WI App 15 (recommended for publication); for Geske: Jefren E. Olsen, SPD, Madison Appellate; case activity

Sufficiency of Proof – “Utter Disregard” Element (Reckless Homicide, § 940.02(1)) 

Evidence held sufficient to support reckless homicide element of utter disregard of human life, where deaths resulted from high-speed automobile collision after running red light, notwithstanding undisputed evidence that Geske swerved her car in an attempt to avoid the collision. 

State v. Jerome Mark Panick, Jr., 2011AP1107-CR, District 3, 1/4/12

court of appeals decision (1-judge, not for publication); for Panick: Paul G. LaZotte, SPD, Madison Appellate; case activity

The court rejects Panick’s argument that he “substantially complied” with IAD requirements for demanding a speedy trial on a detainer as set forth in § 976.05(3)(b). (Panick concededly fell short of the literal requirements – he mailed a letter to the prosecutor but failed to send it certified or to the local court or to obtain the warden’s certificate.) Fex v.

State v. Luke T. Nirmaier, 2011AP1355-CR, District 3, 12/28/11

court of appeals decision (1-judge, not for publication); for Nirmaier: Michael M. Rajek; case activity

The odor of alcohol on Nirmaier following a traffic accident resulting in substantial bodily injury triggered the implied consent law, notwithstanding absence of probable cause to arrest at that point:

¶9        Wisconsin Stat. § 343.305(3) outlines different scenarios in which an officer may invoke the implied consent law and request a chemical test of an individual’s breath,

Shawano County v. Anne R., 2011AP2040, District 3, 12/28/11

court of appeals decision (1-judge, not for publication); for Anne R.: Donna L. Hintze, SPD, Madison Appellate; case activity

Anne R. challenges the extension of her mental health commitment / involuntary medication order, on the ground the County failed to prove she would be a proper subject for commitment if treatment were withdrawn, § 51.20(1)(am). The court rejects the argument,

State v. Cedric O Clacks, 2011AP338-CR, District 4, 12/22/11

court of appeals decision (not recommended for publication); for Clacks: Jefren E. Olsen, SPD, Madison Appellate; case activity

Evidence held sufficient to prove contested, fourth element of identity theft (intentional representation user of personal identification document of another authorized to use it), § 943.201(2)(a) as party to the crime.

¶15      Specifically, Clacks contends that handing the credit card to a sales clerk to make a purchase and signing the electronic credit card slip cannot,

Dane Co. DHS v. Johnny S., 2011AP1659, District 4, 12/22/11

court of appeals decision (1-judge, not for publication); for Johnny S.: Dennis Schertz; case activity

¶7        Johnny contends he was not able to meaningfully participate at the trial for three reasons.  First, he appeared by telephone, not videoconference, and he did not waive his right to appear by videoconference.  Second, he could not hear what was being said during trial. 

State v. Kenneth M. Sobczak, 2012 WI App 6 (recommended for publication), petition for review granted, 6/13/12; for: Sobczak: Ryan J. Hetzel; case activity

¶6        The issue in this case is whether the girlfriend—as a guest in Sobczak’s parents’ home—had the authority to consent to the officer’s entry into the Sobczak residence and to the search and seizure of Sobczak’s laptop.[1]  We hold that she did

State v.

State v. Brent T. Novy, 2012 WI App 10 (recommended for publication), petition for review granted, 6/13/12; for Novy: Joseph George Easton; case activity

Rebuttal – Evidence Excluded from Case-in-Chief for Discovery Violation 

Expert witness testimony, excluded from the State’s case-in-chief as a sanction failure to identify the witness during discovery, was admissible on rebuttal to attack the defendant’s testimony after he testified.