On Point blog, page 409 of 489
OWI — Implied Consent — Non-English Speaking Driver
State v. Ibrahim Begicevic, 2004 WI App 57
For Begicevic: Donna J. Kuchler
Issue: Whether reading the “Informing the Accused” form in English to a non-English speaking driver was an unreasonable way of conveying required implied consent warnings.
Holding:
¶21. Kennedy did not attempt to obtain an interpreter. When Kennedy read the Informing the Accused in English, Gasse did not translate the form verbatim nor did he make an effort to explain the rights in the form in German to Begicevic.
Double Jeopardy – Multiplicity: Burglary (Intent to Steal) While Armed, § 943.10(2)(a) (1997-98) and Burglary (Intent to Steal) While Committing Battery, § 943.10(2)(d) (1997-98)
State v. Shawn A. Beasley, 2004 WI App 42, PFR filed 3/26/04
For Beasley: Robert Ruth
Issue: Whether charges and convictions for burglary while armed (§ 943.10(2)(a)) and burglary while committing battery (§ 943.10(2)(d)) are multiplicitous.
Holding:
¶5. We reject Beasley’s challenge for two reasons. First, the subsections of Wis. Stat. § 943.10(2) do not define penalty enhancers, they define distinct crimes.
Double Jeopardy – Prosecutorial Misconduct: Vindictiveness – Adding New Charges After Postconviction Relief
State v. Clyde Baily Williams, 2004 WI App 56, federal habeas denied, Williams v. Bartow, 481 F.3d 492 (7th Cir 2007)
For Williams: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding: Issuing new charges for “a completely separate and distinct criminal episode” after the grant of appellate relief does not give rise to a presumption of vindictiveness:
¶45 … As Humphrey [v.
Double Jeopardy: “Manifest Necessity” for Mistrial Where “Counsel Aired Improper and Highly Prejudicial Evidence Before Jury”
State v. Clyde Baily Williams, 2004 WI App 56, federal habeas denied, Williams v. Bartow, 481 F.3d 492 (7th Cir 2007)
For Williams: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding:
¶22. We begin by addressing Williams’ double jeopardy claim. He submits that the trial court failed to exercise “sound discretion” in declaring a mistrial after his counsel had asked a State witness,
Due Process – Exculpatory Evidence – Deferred-Judgment Probationary Status, Prosecutorial Duty to Disclose, § 971.23(1)(f)
State v. Richard G. White, 2004 WI App 78, (AG’s) PFR filed 4/1/04
For White: James A. Rebholz
Issue/Holding:
¶23. Under Wis. Stat. § 971.23(1)(f), a prosecutor must, upon request, disclose to the defense “[t]he criminal record of a prosecution witness which is known to the district attorney.” A prosecutor, however, has an affirmative duty to make reasonable inquiry and may not assert that he or she did not know of those things within the ambit of § 971.23 that could have been reasonably discovered.
Enhancers, § 939.62(2m)(b)2 – Not Cruel and Unusual Punishment
State v. Michael D. Lewis, 2004 WI App 211
For Lewis: Timothy A. Provis
Issue/Holding: Sentence of life imprisonment without possibility of parole, as persistent repeater due to prior conviction for sexual assault of a child, on a current conviction for child enticement isn’t cruel / unusual punishment under the 8th amendment. ¶¶16-18.
DNA Collection, § 973.047, and Surcharge, § 973.046 — Prior Collection
State v. Franciollo L. Jones, 2004 WI App 212, PFR filed 11/11/04
For Jones: Syovata Edari; Ellen Henak (on PFR), SPD, Milwaukee Appellate
Issue: Whether the trial court properly ordered Jones to pay a DNA surcharge even though he had already provided a DNA sample in an earlier case.
Holding:
¶5 WISCONSIN STAT. § 973.047 obligates the trial court to require anyone convicted of a felony to provide a DNA specimen.
Due Process – Defendant’s Right to Testify – Waiver
State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz
Issue:Whether the defendant’s explicit waiver of his right to testify was conditional (on the outcome of two defense witnesses) such that another colloquy should have been conducted; or, if the waiver is deemed binding, whether the trial court nonetheless erroneously exercised discretion in refusing the defendant’s request, after the close of evidence,
Enhancer — § 940.03, Felony-Murder (1999-2000)
State v. Brandon L. Mason, 2004 WI App 176
For Dawson: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding: The felony murder statute, § 940.03 (1999-2000), contains characteristics suggestive of both penalty enhancers (it adds a specified term to the maximum penalty applicable to the underlying crime), ¶15, and also substantive offenses (it is located in a chapter that defines substantive offenses; and it incorporates the elements of offenses located elsewhere),
Earned Release Program (“ERP”), § 973.01(3) — Trial Court’s Authority to Determine When as Well as Whether Defendant Is Eligible — Identity of “CIP” Purpose
State v. Miyosha White, 2004 WI App 237, PFR filed 12/1/04
For White: Leonard Kachinsky
Issue/Holding: A sentencing court exercising discretion on eligibility for the earned release program, § 973.01(3g), has authority to determine not only whether but also when the defendant is eligible for the program. The language and purpose of the earned release statute is “almost identical” to the “boot camp” statute, § 973.01(3m),