On Point: 46. WI Court of Appeals

State v. Calvin Jerome Pirtle, 2011 WI App 89(recommended for publication); for Pirtle: Christopher J. Cherella; case activity

Consent to Search – Georgia v. Randolph

Pirtle’s failure to object to the police presence allowed them to act on the co-tenant’s consent to a warrantless search under Georgia v. Randolph, 547 U.S. 103 (2006):

¶15      In Randolph,

State v. Robert Lyle Lawver, Jr., 2010AP382-CR, District 4, 5/5/11

court of appeals decision (1-judge, not for publication); for Lawver: Cole Daniel Ruby; case activity

Conviction for disorderly conduct upheld on following facts:

¶9        The pertinent facts include the following.  Lawver was walking at night down an unlit highway, traveling with traffic, so that he would not have been in a position to see motorists approaching from behind him. 

State v. Brian M. Joski, 2010AP2223-CR, District 3, 5/3/11

court of appeals decision (1-judge, not for publication); for Joski: Thomas J. Coaty; case activity

A prior conviction used to enhance a new sentence may be collaterally attacked on the basis of violation of right to counsel, in other words, that the defendant didn’t validly waive counsel within the requirements set by State v. Klessig,

State v. Randy L. Martin, 2010AP505-CR, District 1, 5/3/11

court of appeals decision (3-judge, not recommended for publication), reversed, 2012 WI 96; for Martin: Byron C. Lichstein; case activity

Although Martin was in custody and had not received Miranda warnings, his statement wasn’t the result of “interrogation” and therefore wasn’t suppressible. When it appeared that Martin’s uncle was going to be arrested for possessing a gun found in their car,

State v. Eliseo Peralta, 2011 WI App 81(recommended for publication); for Peralta: Martin J. Pruhs; case activity

Conspiracy, § 939.31 – “Overt Act”

The “overt act” element of conspiracy, though it must go “beyond mere planning and agreement,” may be “virtually any act,” even if “insignificant,” ¶¶19-21. Thus, Peralta’s “communication to an undercover police detective that a large quantity of cocaine was ready for immediate delivery”

State v. Andrew R. Reierson, 2010AP596-CR, District 4, 4/28/11

court of appeals decision (1-judge, not for publication); for Reierson: John Smerlinski; case activity

The officer’s erroneous reading of Reierson’s license plate, causing the officer to wrongly believe that his registration had expired, nonetheless supported stop of the car under the good-faith rule.

¶11      We conclude the circuit court properly denied the motion to suppress because the officer had probable cause to stop Reierson for operating with an expired registration,

Dane County v. Kelly M., 2011 WI App 69 (recommended for publication); for Kelly M.: Ruth N. Westmont, Ashley J. Richter; case activity

Kelly M. appeals a commitment order premised on the “fifth standard,” inability by reason of mental illness to understand the advantages and disadvantages of medication or treatment for the mental illness.

¶3        We conclude as follows:  (1) Commitment is available under the fifth standard for individuals who have dual diagnoses—that is,

State v. Michael D. Below, 2011 WI App 64 (recommended for publication); for Below: Joseph L. Sommers; case activity

Below indisputably caused massive injuries that resulted in the victim’s death, albeit after medical staff terminated life support. His reckless acts were therefore a “substantial factor” in, hence caused, her death. He was not entitled to a theory of defense instruction authorizing the jury to acquit him on the basis that the termination of life support was an intervening cause of death.

State v. Darron D. Jackson, 2011 WI App 63 (recommended for publication); for Jackson: Rebecca Lawnicki; case activity

Waiver – Lesser Offense Instruction

The jury convicted Jackson of recklessly endangering safety while armed, which was submitted as a lesser offense of the charged offense, attempted first-degree intentional homicide. Although Jackson did object to the endangering instruction on the ground that it wasn’t supported by the facts,

State v. Herbert O. Richard, 2011 WI App 66 (recommended for publication); for Richard: Steven D. Grunder, SPD, Madison Appellate; case activity

Changes in the scoring of the actuarial test which was used to support Richard’s commitment at his original trial, cannot support his discharge petition even though his new score would reduce his predicted likelihood of reoffending.

¶13      Richard argues that the circuit court improperly dismissed his petition for discharge and that he is entitled to a discharge hearing.