On Point blog, page 384 of 484
No-Merit Report: No Serial Litigation Bar Where Arguably Meritorious Issue Overlooked
State v. Ricky J. Fortier, 2006 WI App 11
Issue/Holding: Fortier’s failure to respond to no merit report does not, under the circumstances, work serial litigation bar to subsequent, arguably meritorious challenge to sentence:
¶15 Fortier contends that he should not be precluded from raising the issue of a sentence illegally raised upon resentencing, even though he failed to raise it in a response to the no-merit report at the time of the original appeal.
TPR, Sufficiency of Evidence — Jury Verdict That State Failed to Prove Grounds
State v. Lamont D., 2005 WI App 264
Issue Whether the State sufficiently proved grounds to support TPR such that the court should change the jury’s special verdict to the contrary.
Holding: “Because the record contains contradictory evidence and a key witness did not testify, and because it is possible the jury did not believe that the State proved the six-month period of abandonment, the trial court’s refusal to change the verdict answer or to grant a new trial was not ‘clearly wrong,’” ¶1.
TPR: Right to “Meaningfully Participate” in Hearing
State v. Lavelle W., 2005 WI App 266
Issue/Holding:
¶2 Birth-parents “have constitutionally protected rights to raise their children as they see fit, and these rights may only be circumscribed if the government proves that there is a ‘powerful countervailing interest.’” Richard D. v. Rebecca G., 228 Wis. 2d 658, 661, 599 N.W.2d 90, 92 (Ct. App. 1999) (quoted sources and one internal quotation mark omitted).
TPR: (Imprisoned) Parent’s Telephonic Appearance and Right to “Meaningfully Participate” in Hearing
State v. Lavelle W., 2005 WI App 266
Issue: Whether the right of a parent imprisoned in the federal system to “meaningfully participate” in a TPR proceeding was violated when he was not physically produced in court but, instead, was limited to telephonic participation.
Holding: Where various mechanisms could have been utilized to produce the father yet weren’t attempted, and the telephone hook-up was, under the circumstances,
Confrontation – Hearsay: Necessity of Showing Declarant’s Unavailability
State v. Daniel D. King, 2005WI App 224
For King: Scott D. Obernberger
Issue/Holding: The confrontation clause requires that the hearsay declarant be unavailable to testify at trial “and, critically, that the State make a ‘good-faith effort’ to produce the declarant at trial,” ¶6. The trial court erred in determining that the declarant was truly unavailable:
¶16 First, the State conceded that its process-server had Shelia J.’s wrong address for seven of the attempts at service.
Confrontation – Hearsay: “Testimonial” Statements – Police Interview of Victim at Hospital – Line-Up Identification
State v. Daniel D. King, 2005 WI App 224
For King: Scott D. Obernberger
Issue/Holding: An interview by a detective of the victim at a hospital shortly after the charged assault, admitted into evidence as an excited utterance, is deemed “testimonial” (and, therefore, inadmissible under the confrontation clause) because it involved “response(s) to ‘structured police questioning,’” ¶18.
Result seems unassailable in light of Hammon v.
Double Jeopardy – Retrial Following Mistrial over Defense Objection, Generally
State v. Barbara E. Harp, 2005 WI App 250
For Harp: Aaron N. Halstead, Kathleen Meter Lounsbury, Danielle L. Carne
Issue/Holding:
¶13 The Fifth Amendment to the United States Constitution and article I, section 8 of the Wisconsin Constitution prevent the state from trying a defendant multiple times for the same offense. [4] “[G]iven the importance of the constitutional protection against double jeopardy,
Ambiguous Assertion of Rights — Silence
State v. Richard Allen Hassel, 2005 WI App 80
For Hassel: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding1: Hassel’s custodial statement, “I don’t know if I should talk to you” was ambiguous and therefore triggered no duty to terminate the interrogation, ¶¶16-19.
The court of appeals purported to follow Davis v. United States, 512 U.S. 452 (1994), which holds that the police have no duty to clarify an ambiguous assertion of rights made after clearly waiving them.
Miranda Waiver – Inaccurate Advice, from Counsel
State v. Xavier J. Rockette, 2005 WI App 205
For Rockette: Timothy A. Provis
Issue/Holding:
¶24 We conclude that Rockette did not waive his Miranda rights. Rockette does not argue that Chausee did anything to coerce his confession. Indeed, the purpose of Rockette’s cooperation at the interview, which his own counsel set up, was to increase his chances of securing some leniency from the State.
Noncustodial Assertion of Rights
State v. Richard Allen Hassel, 2005 WI App 80
For Hassel: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding: Hassel’s noncustodial statement, “I can’t talk to you,” did not amount to a Miranda-protected assertion of rights, largely because such rights can’t be invoked “anticipatorily,” ¶¶8-15. (State v. Fencl, 109 Wis. 2d 224, 325 N.W.2d 703 (1982) distinguished as a rule of evidence safeguarding against substantive use at trial of prearrest silence.)