On Point blog, page 366 of 484
§ 903.03, Conclusive Presumptions — Generally
State v. Sherry L. Schultz, 2007 WI App 257; companion case: State v. Scott R. Jensen, 2007 WI App 256; prior history: State v. Scott R. Jensen, 2004 WI App 89, affirmed, 2005 WI 31For Schultz: Stephen L. Morgan, Jennifer M. Krueger
Issue/Holding:
¶9 In State v. Kuntz,
§ 903.03, Conclusive Presumptions – Limiting Language Required on Matters of Law as Well as Fact
State v. Sherry L. Schultz, 2007 WI App 257; prior history: State v. Scott R. Jensen, 2004 WI App 89, affirmed, 2005 WI 31
For Schultz: Stephen L. Morgan, Jennifer M. Krueger
Issue/Holding: Jury instructions on the elements of duty and intent under § 946.12(3) created mandatory conclusive presumptions:
¶10 Schultz contends that the following sentences in the jury instruction given by the trial court operated as mandatory conclusive presumptions on the issues of intent and duty: “The use of a state resource to promote a candidate in a political campaign or to raise money for a candidate provides to that candidate a dishonest advantage” (establishing the intent element);
§ 904.04, Applicability of “Sullivan” Analysis – Evidence of Drug House not Extraneous Misconduct but Proof of Element
State v. Charles E. Dukes, 2007 WI App 175
For Dukes: Robert N. Meyeroff
Issue/Holding:
¶29 Here, Detective Carter testified that he observed the building at 450 North 33rd Street, saw people coming, staying for a few minutes and leaving, and explained that such traffic was consistent with operating a drug house. He admitted, however, that he was unable to see which unit the people who appeared to be purchasing drugs entered.
Plea Bargains – Breach: By Prosecutor, Recommending Lengthy Terms of Supervision – Non-Material Where Confinement Defendant’s Main Concern
State v. David C. Quarzenski, 2007 WI APP 212, PFR filed 9/21/07
For Quarzenski: Martin E. Kohler, Christopher M. Eippert
Issue: Whether counsel was ineffective for failing to object to the State’s sentencing recommendation where: under the plea bargain the State agreed to and in fact “capped” its recommendation on several counts to a total of “7 years in prison” but “additionally asked for an extensive period of extended supervision and consecutive long-term probation.”
Holding: The State did not materially and substantially breach the agreement,
Witness – Impeachment – Gang Affiliation of Witnesses – Irrelevant in Absence of Evidence Defendant Was Gang Member
State v. Thomas C. Burton, 2007 WI App 237
For Burton: Timothy A. Provis
Issue/Holding: Testimony by a “gang expert” as to the gang-affiliation of certain witnesses, in an effort to explain their motive to testify as they did, was irrelevant in the absence of any evidence that the defendant was himself a gang member:
¶14 Burton’s central argument on appeal is that Warmington’s testimony was squarely barred by State v.
Impeachment with Post-Miranda Silence – Generally: Due Process Analysis
State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.
Issue/Holding:
¶14 Although Cockrell describes his challenge to the prosecutor’s use of his post- Miranda silence as a violation of his Fifth Amendment right to remain silent, the substance of his argument is the due process analysis employed in Doyle v. Ohio,
Self-Incrimination – Impeachment with Post-Miranda Silence – Generally: Partial Exercise of Rights
State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.
Issue/Holding:
¶16 Building on footnote 11 in Doyle, courts have recognized situations in which it is not a violation of due process for the prosecutor to elicit on cross-examination the fact of the defendant’s post- Miranda silence for the purpose of impeaching the defendant’s testimony about his or her interactions with the police after the arrest.
Self-Incrimination – Impeachment with Post-Miranda Silence – Distinction re: Substantive Use
State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.
Issue/Holding:
¶31 … (A)s long as the prosecutor does not ask the jury to make a direct inference of guilt from the defendant’s post-arrest silence, asking the jury to draw inferences that impeach the defendant’s volunteered testimony on that subject does not violate due process, even though the inferences,
Expert Witness – Conclusion as to Ultimate Fact
State v. Louis H. LaCount, 2007 WI App 116, affirmed, 2008 WI 59, ¶20
For LaCount: T. Christopher Kelly
Issue/Holding:
¶19 Under Wis. Stat. § 907.04, “[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” See, e.g.,
Finality of Order – Trial Court’s Inherent Authority to Reconsider Non-Final Order
State v. Frederick W. Rushing, 2007 WI App 227, PFR filed 10/25/07
For Rushing: Randall E. Paulson, SPD, Milwaukee Appellate
Issue/Holding: Trial courts possess inherent authority to reconsider any non-final ruling prior to entry of final order or judgment, ¶13, citing State v. Bobby R. Williams, 2005 WI App 221, ¶17, 287 Wis. 2d 748, 706 N.W.2d 355.
The trial court reconsidered its own prior sua sponte vacatur of a guilty plea.