On Point: 46. WI Court of Appeals

Kenosha County v. Jodi A. Braune, 2010AP834, District 2, 3/9/11

court of appeals decision (1-judge, not for publication); for Braune: Theodore B. Kmiec, III; case activity

¶7        We hold that under the plain language of Wis. Stat. § 346.13(3), Braune’s deviation over the fog line was sufficient to establish probable cause that Braune committed a traffic violation.  When the deputy observed Braune’s conduct, he had probable cause that Braune did not drive “in the lane designated.”  See § 346.13(3). 

Richardson v. Henderson, 2010AP1765, District 2, 3/9/11

court of appeals decision (1-judge, not for publication); case activity

¶7, n.4:

Our supreme court has held that “when the supreme court overrules a court of appeals decision, the court of appeals decision no longer possesses any precedential value, unless this court expressly states otherwise.”  Blum v. 1st Auto & Cas. Ins. Co.

State v. Lawrence Williams, 2010AP1028, District 1, 3/8/11

court of appeals decision (not recommended for publication); pro se; case activity; prior history: 220 Wis.2d 458, 583 N.W.2d 845 (Ct.App. 1998)

Williams fails to provide a “sufficient reason” to overcome the serial litigation bar on his § 974.06 motion following direct appeal. He posits ineffective assistance of postconviction counsel, for failing to argue that trial counsel was ineffective in various respects.

State v. Kerry J. Collins, 2010AP788-CR, District 1, 3/8/11

court of appeals decision (1-judge, not for publication); for Collins: Gary Grass; case activity

Evidence held sufficient to sustain conviction under § 941.10, court rejecting Collins’ argument that State failed to prove he was the person who set off flare in City Hall bathroom. Whatever weaknesses and discrepancies existed as to culpability merely raised questions for the jury to resolve;

State v. Anthony M. Smith, 2009AP2867-CR, District 1/4, 3/3/11

court of appeals decision (not recommended for publication); for Smith: Rodney Cubbie, Syovata K. Edari; case activity

Trial court’s limitations on cross-examination with respect to State witness’s “prior mental condition” or use of medications (prescribed for his Bipolar Disorder and Attention Deficit Disorder) upheld as proper exercise of discretion. The witness was taking his medication at the time of the alleged offense,

State v. Kelly J. McCredie, 2010AP1179-CR, District 2, 3/2/11

court of appeals decision (not recommended for publication); for McCredie: William E. Schmaal, SPD, Madison Appellate; case activity

For purposes of 3rd-degree sexual assault, § 940.225(3), the actor cannot obtain consent by deceiving the victim as to his true identity. McCredie misled the victim into thinking he was his brother (she was sleeping in a dark room when he suddenly appeared;

State v. Winston B. Eison, 2011 WI App 52; for Eison: Andrea Taylor Cornwall, SPD, Milwaukee Appellate; case activity

Preservation of Issue – Motion in Limine

Eison objected to introduction of evidence of his arrest on an unrelated offense via motion in limine, which the trial court granted. At trial, however, the court allowed the State to introduce this evidence. Eison didn’t need to lodge additional objection to preserve the issue for review.

State v. Derek J. Copeland, 2011 WI App 28; for Copeland: David Leeper; case activity

Trial court has discretion under § 906.15(3) to order an attorney not to discuss with a sequestered witness who hasn’t yet testified the testimony of other witnesses; this authority extends to barring counsel from providing the sequestered witness with a transcript of prior-witness testimony. The trial court in this instance misperceived a lack of such authority,

State v. Robert S. Powless, 2010AP1116-CR, District 3/4, 2/24/11

court of appeals decision (not recommended for publication); for Powless: Leonard D. Kachinsky; case activity

At an evidentiary hearing on a “Hampton” violation (failure to assure defendant knows the judge isn’t bound by the plea agreement), the State satisfied its burden of proving that Powless in fact knew the judge could exceed the State’s sentencing recommendation.

¶37      Our conclusion is based on the following. 

State v. Sidney Clark, 2010AP790, District 1, 2/23/11

court of appeals decision (not recommended for publication); for Clark: John A. Pray; case activity

Clark can’t show prejudice from the deficient performance he alleges, therefore he isn’t entitled to a Machner hearing on ineffective assistance of counsel.

¶21      A postconviction hearing is necessary to sustain a claim of ineffective assistance of counsel.  See State v.