On Point blog, page 407 of 483
Arrest — Search Incident — Implied Consent, Driver’s Request for Additional Test, §§ 343.305(4) and (5)
State v. James A. Schmidt, 2004 WI App 235
For Schmidt: Daniel S. Diehn
Issue: Whether § 343.305(5)(a) requires that the driver request an additional test after the police have administered the primary test and, if not, whether Schmidt’s pre-blood draw request for a breathalyzer was properly rejected.
Holding:
¶11. Although Wis. Stat. § 343.305(4) and (5) use the term “alternative test,”
Search & Seizure – Applicability of Exclusionary Rule — Violation of Nonconstitutional Right – SCR (Attorney Ethical Rules)
State v. John R. Maloney, 2004 WI App 141, affirmed on other grounds, 2005 WI 74
For Maloney: Lew A. Wasserman
Issue/Holding:
¶11. The trial court held that there had been no violation of SCR 20:4.2 and that even if there had been, suppression would not be the remedy. We agree with the trial court that suppression is not available for an ethics violation.
Search & Seizure – Applicability of Exclusionary Rule — Violation of Nonconstitutional Right –Violation of Statute, § 175.40(6)
State v. Peter R. Cash, 2004 WI App 63
For Cash: Lynn M. Bureta
Issue/Holding: Any violation of § 175.40(6), which regulates the arrest power of an officer operating outside territorial jurisdiction would not support suppression as a remedy:
¶30. Assuming arguendo that the Waukesha County Sheriff’s Department had not adopted the written policies required by Wis. Stat. § 175.40(6)(d), we agree with the State that suppression is not a remedy for such a statutory transgression.
Intrastate Detainer, § 971.11 — Self-Effectuating / Personal Nature of Request
State v. Michael D. Lewis, 2004 WI App 211
For Lewis: Timothy A. Provis
Issue/Holding:
¶10. The State does not dispute that it failed to bring Lewis’s case to trial within 120 days after the district attorney’s office received his request for prompt disposition of his case. …
¶11. The statute mandates that when the case is not brought to trial within 120 days,
§ 903.03, Presumed Delivery of Mail
State v. Henry W. Aufderhaar, 2004 WI App 208, PFR filed 11/16/04
For Aufderhaar: J. Paul Neumeier Jr.; Raymond E. Krek
Issue/Holding:
¶27 Here, it is true that the delinquency petition, though filed in court, was never in Aufderhaar’s hands before the waiver hearing took place. However, at the time of the hearing, Aufderhaar is presumed to have had notice that such a petition existed because the notice of waiver hearing was sent to his correct Montana address before the waiver hearing and that notice was never returned as undeliverable.
§ 904.01, Relevance – Consciousness of Innocence — Polygraph Test Offer, Made by Counsel
State v. Gregg A. Pfaff, 2004 WI App 31
For Pfaff: Rex Anderegg
Issue/Holding:
¶26. While a polygraph test result is inadmissible in Wisconsin, see State v. Dean, 103 Wis. 2d 228, 279, 307 N.W.2d 628 (1981), an offer to take a polygraph test is relevant to an assessment of the offeror’s credibility and may be admissible for that purpose. State v.
§ 904.03, Unfair Prejudice – Autopsy Photo
State v. Gregg A. Pfaff, 2004 WI App 31
For Pfaff: Rex Anderegg
Issue/Holding:
¶34. Whether photographs are to be admitted is a matter within the trial court’s discretion. State v. Lindvig, 205 Wis. 2d 100, 108, 555 N.W.2d 197 (Ct. App. 1996). We will not disturb the court’s discretionary decision “unless it is wholly unreasonable or the only purpose of the photographs is to inflame and prejudice the jury.”
§ 904.04 – Admissibility of Misconduct Evidence Despite Prior Acquittal
State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz
Issue/Holding: Prior acquittal of sexual assault didn’t prevent admissibility of testimony from that trial: the test is whether a reasonable jury could find by preponderance of the evidence that the defendant committed the misconduct, State v. Landrum, 191 Wis. 2d 107, 117, 528 N.W.2d 36, 41 (Ct.
Plea Bargains – Validity: Reopen and Amend to Less Serious Offense if Restitution Made Before Sentencing
State v. Peter R. Cash, 2004 WI App 63
For Cash: Lynn M. Bureta
Issue: Whether a plea agreement, which provided that if Cash returned stolen goods prior to sentencing the State would request that the judgment be reopened and amended from burglary to Class E felony theft, was invalid and the guilty plea therefore invalid as well, under the logic of State v. Hayes,
Plea Bargains — Validity: Remedy for Invalid Plea Bargain
State v. Anthony L. Dawson, 2004 WI App 173
For Dawson: William E. Schmaal, SPD, Madison Appellate
Issue/Holding:
¶25. In sum, the State has not presented us with a valid rationale for upholding the denial of Dawson’s plea withdrawal motion. Dawson has established that his plea was not knowing and voluntary because it was induced by the promise of a possible future benefit that could never be conferred.