On Point blog, page 374 of 484
Counsel – Ineffective Assistance – Deficient Performance: Adequate Investigation — Alibi Defense
State v. Eric D. Cooks, 2006 WI App 262
For Cooks: Joseph E. Redding
Issue/Holding:
¶50 Cooks, as the trial court found, provided Barth with the names of alibi witnesses and Barth had Cooks testify to his alibi. However, Barth failed to investigate the potential alibi witnesses and argue Cooks’ alibi to the jury. Barth failed to do so despite the fact that a corroborated alibi clearly would have reinforced Barth’s misidentification theory of defense.
Counsel – Ineffective Assistance – Deficient Performance: Adequate Investigation – Failure to Pursue NGI Defense
State v. Juan F. Milanes, 2006 WI App 259, PFR filed 12/7/06
For Milanes: Joan M. Boyd
Issue/Holding: Failure to pursue an NGI defense wasn’t deficient:
¶19 … The evidence in support of Milanes’ claim is remarkably weak; the strongest piece of evidence is the report of his psychiatric expert, which contains a conclusory statement that Milanes meets the statutory requirements. We will not discuss this issue in detail,
Defenses – Mistake, § 939.43(1) – Relation to Reckless Conduct
State v. Quentrell E. Williams, 2006 WI App 212
For Williams: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: Because “recklessly” causing harm to a child, § 948.03(b), is determined solely from an objective point of view, evidence related to whether the actor “subjectively thought his [disciplinary action] was reasonable parental discipline” is irrelevant, including evidence of how the actor was him or herself disciplined as a child,
Defenses – Imperfect Self-Defense, Generally
State v. Thomas G. Kramer, 2006 WI App 133, PFR filed 7/10
For Kramer: Timothy A. Provis
Issue/Holding:
¶23 At trial, Kramer asserted he acted in self-defense, and the jury was instructed on imperfect self-defense. A successful defense based on imperfect self-defense reduces first-degree intentional homicide to second-degree intentional homicide. [12] The test is subjective; a defendant must present “evidence of actual beliefs that [he] was in imminent danger of death or great bodily harm and that the force [he] used was necessary to defend [himself].”State v.
Fines — Attorney Fees, Distinguished From
State v. Kevin J. Helsper, 2006 WI App 243
For Helsper: Glenn L. Cushing, SPD, Madison Appellate
Issue/Holding:
¶20 Fines and attorney fee obligations involve different State purposes, and therefore a different constitutional analysis. When analyzing the constitutionality of a fee recoupment statute, the court is to consider, among other things, the rationality of the connection between legislative means and purpose and the existence of alternative means for effectuating the purpose.
Hit-and-Run, § 346.67(1) – Element of “Accident”: May Encompass Intentional Conduct
State v. Stephen D. Harmon, 2006 WI App 214, PFR filed 10/26/06
For Harmon: Timothy A. Provis
Issue/Holding:
¶14 The “two clear purposes” of Wisconsin’s hit-and-run statute are:
(1) to ensure that injured persons may have medical or other attention with the least possible delay; and (2) to require the disclosure of information so that responsibility for the accident may be placed.
Hit-and-Run, § 346.67(1) – Reporting Requirement as Related to Self-Incrimination
State v. Stephen D. Harmon, 2006 WI App 214, PFR filed 10/26/06
For Harmon: Timothy A. Provis
Issue/Holding: The § 346.67(1) requirement that a driver provide name, address, vehicle registration number, and driver’s license “to the person struck” does not violate the 5thamendment under controlling authority of California v. Byers, 402 U.S. 426 (1971), notwithstanding that the statute encompasses intentional conduct:
¶29 In short,
Defenses – Issue Preclusion — “Actually Litigated” Requirement: OWI – Prior Judicial Overturn of Administrative Suspension, Not Necessarily Preclusive as to Subsequent Prosecution for Drunk Driving
City of Sheboygan v. Steven Nytsch, 2006 WI App 191, PFR filed 9/11/06
For Nytsch: Chad A. Lanning
Issue: Whether a prior judicial review of a driver’s license suspension, overturning the administrative suspension, had a preclusive effect on the issue of probable cause to arrest for drunk driving in the subsequent prosecution for that offense.
Holding:
¶11 Thus, a threshold prerequisite for application of the doctrine is that,
Double Jeopardy – Multiplicity, Generally
State v. Alvin M. Moore, 2006 WI App 61, PFR filed 3/21/06
For Moore: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding:
¶15 Charges are multiplicitous if they charge a single criminal offense in more than one count. State v. Grayson, 172 Wis. 2d 156, 159, 493 N.W.2d 23 (1992). Claims of multiplicity are analyzed using a two-prong test that requires examination of: (1) “whether the charged offenses are identical in law and fact;” and (2) if they are not,
Double Jeopardy – Prosecutorial Misconduct – Provoking Mistrial, Generally
State v. Jose M. Jaimes, 2006 WI App 93, PFR filed 5/11/06
For Jaimes: Joseph L. Sommers
Issue/Holding: Retrial is ordinarily not barred when the defendant successfully requests mistrial, except where prosecutorial overreaching, comprised of the following elements, has been shown: the prosecutor’s has “ a culpable state of mind in the nature of an awareness that his activity would be prejudicial to the defendant”;