On Point blog, page 381 of 485
Extradition – Rule of Specialty
State ex rel. Kenneth Onapolis v. State, 2006 WI App 84, PFR filed 5/25/06
Pro se
Issue/Holding: Extradition from Australia to Wisconsin to face bank fraud and federal tax charges did not preclude, under the Rule of Specialty, Onapolis’s return on an outstanding parole violation warrant, at least where the parole violations included the fraud and tax offenses. (“The Rule of Specialty generally requires that an extradited defendant be tried for the crimes on which extradition has been granted,
Deferred Prosecution Agreement (Domestic Abuse), § 971.37 – Post-Revocation Withdrawal Comes within Test for Post-Sentencing Motion
State v. Sean M. Daley, 2006 WI App 81, on remand, PFR filed 5/10/06; prior history: 2005 WI App 260, decision vacated and remanded, 2006 WI 25
For Daley: Kirk B. Obear
Issue/Holding: Motion for plea-withdrawal following revocation of a deferred prosecution agreement but before sentencing has been imposed is gauged by the manifest injustice test for post-sentencing plea withdrawal,
§ 904.03, Unfair Prejudice – Witness’s Reference to Knowing Defendant from Jail as Basis for Ability to Identify Him
State v. Eric D. Cooks, 2006 WI App 262
For Cooks: Joseph E. Redding
Issue/Holding: Failure to object to a witness’s reference to having known the defendant from jail was not deficient performance, because this evidence was admissible anyway:
¶47 Furthermore, Cooks’ ineffective assistance of counsel claim is premised on a correct trial court ruling and cannot succeed. See Ziebart,
Unfair Prejudice, § 904.03 – Misconduct Evidence, Child Sexual Assault
State v. Randy Mcgowan, 2006 WI App 80
For Mcgowan: Dianne M. Erickson
Issue/Holding:
¶23 Here, the offered evidence (testimony of forced fellatio, performed by a five-year-old child victim, followed by urination in the victim’s mouth) undoubtedly aroused the jury’s “sense of horror” and “provoke[d] its instinct to punish.” See Sullivan, 216 Wis. 2d at 789-90. Revulsion as to this conduct is not significantly mitigated by the fact that McGowan was only ten years old at the time and the event was an isolated incident.
Plea Bargains — Validity: Waiver of Right to Appeal or Collateral Attack
State v. Lawrencia Ann Bembenek, 2006 WI App 198, PFR filed 10/3/06
For Bembenek: Joseph F. Owens, Woehrer, Mary L.
Issue: Whether Bembenek’s postconviction motion for DNA testing at State’s expense, as part of an effort to establish her innocence, was barred by her plea agreement whose terms included waiver of her right to direct appeal and collateral attack and “any challenges that might be brought to the underlying factual basis for this plea.”
Holding:
¶15 The record demonstrates that an exchange of promises in return for specific benefits occurred: (1) Bembenek would no longer be convicted of first-degree murder;
Deferred Prosecution Agreement (Domestic Abuse), § 971.37 – Validity
State v. Sean M. Daley, 2006 WI App 81, on remand, PFR filed 5/10/06; prior history: 2005 WI App 260, decision vacated and remanded, 2006 WI 25
For Daley: Kirk B. Obear
Issue/Holding: A deferred prosecution agreement, whereby the defendant enters no contest pleas but entry of judgment of conviction is stayed,
Particular Examples of Misconduct, § 904.04(2) – Bias of Prosecution Witness
State v. Walter T. Missouri, 2006 WI App 74
For Missouri: Jeffrey W. Jensen
Issue: Whether evidence of police officer Mucha’s mistreatment of a 3rd-party (Scull) in an otherwise unrelated but similar instance was admissible to further defendant Missouri’s claim that Mucha was untruthful in denying physical abuse against and planting evidence on Missouri.
Holding: This evidence satisfied the three-part test of State v.
Particular Examples of Misconduct, § 904.04(2) – “Reverse” Misconduct – Misidentification of Defendant on Similar Crime
State v. Bruce T. Davis, 2006 WI App 23
For Davis: Russell Bohach
Issue/Holding: Evidence that Davis was misidentified as the perpetrator of a crime he could not have committed but which was similar to the crimes he was tried for was admissible:
¶28 Looking at the first factor, the State concedes that this witness’s testimony was offered for identification purposes, an admissible purpose under Wis.
§ 904.04 – Greater Latitude Rule in Sexual Assaults, Generally
State v. Randy Mcgowan, 2006 WI App 80
For Mcgowan: Dianne M. Erickson
Issue/Holding:
¶14 … The supreme court has provided significant guidance concerning the use of other acts evidence in child sexual assault cases. In State v. Davidson, 2000 WI 91, 236 Wis. 2d 537, 613 N.W.2d 606, the court discussed the three-step framework, which was originally set forth in State v.
§ 904.04 – Greater Latitude Rule in Sexual Assaults — Admissibility of Assault by One Child on Another Child 8 Years Before Charged Offense
State v. Randy Mcgowan, 2006 WI App 80
For Mcgowan: Dianne M. Erickson
Issue/Holding:
¶20 We cannot conclude that the allegations are sufficiently factually similar to justify admission of Janis’s testimony as other acts evidence. Assuming the truthfulness of both Sasha and Janis for purposes of this analysis, we conclude that a single assault, by one young child on another young child, eight years before repeated assaults by an adult on a different child who was three years older than the first victim,