On Point blog, page 415 of 483
Due Process – Defendant’s Right to Testify, as Affected by Intent to Commit Perjury – Counsel’s Role
State v. Derryle S. McDowell, 2003 WI App 168, affirmed, 2004 WI 70, ¶¶42-47
For McDowell: Christopher J. Cherella
Amici: Keith A. Findley, John T. Savee, John A. Pray, Frank Remington Center & WACDL
Issue/Holding: The defendant’s right to testify does not include a right to testify falsely, Nix v. Whiteside, 475 U.S. 157 (1986):
¶37.
Enhancers — Multiple Enhancers — §§ 939.62(1)(b), 961.48(2)
State v. Paul R. Maxey, 2003 WI App 94
For Maxey: Douglas I. Henderson
Issue/Holding: A sentence may be enhanced by both the general repeater provision of § 939.62(1)(b) (1999-2000) and § the specific repeat drug offender provision of § 961.48(2) (1999-2000), given the rationale of State v. Richard W. Delaney, 2003 WI 9:
¶14. In summary, the law of Wis.
Suppression Hearing – PBT Result – Expert Not Necessary
State v. Guy W. Colstad, 2003 WI App 25
For Colstad: T. Christopher Kelly
Issue/Holding: Expert testimony is not a prerequisite for admission of a PBT result at a suppression hearing. ¶29.
Warrants — Probable Cause — Child Pornography
State v. John Lee Schaefer, 2003 WI App 164, PFR filed 8/21/03
For Schaefer: Jefren E. Olsen, SPD, Madison Appellate
Issue: Whether the search warrant was supported by probable cause to believe that the defendant currently possessed child pornography.
Holding:
¶17. “[E]very probable cause determination must be made on a case-by-case basis, looking at the totality of the circumstances.” State v.
Warrants – Scope – Particularity Requirement – Photographs
State v. John Lee Schaefer, 2003 WI App 164, PFR filed 8/21/03
For Schaefer: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: The search warrant satisfied the particularity requirement by authorizing seizure of the following: “[p]hotographs, movies, slides, videotape, negatives, and/or undeveloped film which would tend to identify … any other juvenile”; and “[m]agazines, books, movies, and photographs depicting nudity and/or sexual activities of juveniles or adults,
Separation of Powers – Shared Power Regarding Judicial Continuances
State v. Charles Chvala, 2003 WI App 257, affirmed, 2005 WI 30
For Chvala: Lawton & Cates
Issue/Holding:
¶1. The criminal complaint in this action charges Charles Chvala, a senator in the Wisconsin Legislature, with extortion, misconduct in public office, and violations of campaign finance statutes. The issue on appeal is whether, as Chvala contends, Wis. Stat. § 757.13 (2001-02) prohibits the trial court from scheduling the trial in this case before the last general business floor session ends on March 11,
Expectation of Privacy — Public Rest Room Stall
State v. Juan M. Orta, 2003 WI App 93
For Orta: Glenn L. Cushing, SPD, Madison Appellate
Issue/Holding:
¶2 … (A)n individual who occupies a public restroom stall does not have a reasonable expectation of privacy when he or she occupies it with another individual, leaves the door slightly ajar and unlatched, and evinces no indication that the stall is being used for its intended purpose.
Expectation of Privacy — Threshold of Residence
State v. James L. Larson, 2003 WI App 150
For Larson: Rex Anderegg
Issue/Holding: A police officer’s stepping into the threshold of an apartment, preventing the occupant from closing the door, amounted to an “entry,” thereby triggering the fourth amendment warrant requirement. ¶¶10-11, following State v. Johnson, 177 Wis. 2d 224, 227, 501 N.W.2d 876 (Ct. App. 1993); and noting that “(t)he police practice of putting a foot in the doorway appears to be a common and widespread practice,
Forfeiture — “Adjudication” of Underlying Crime, § 973.076(2)
State v. One 1997 Ford and David Beck, 2003 WI App 128, PFR filed 6/6/03
For Beck: Adam B. Stephens, Alex Flynn
Issue/Holding: Right to seek adjournment of a forfeiture action until after “adjudication” of the underlying criminal proceeding, § 973.076(2), terminates upon trial-level disposition:
¶18. While the term “adjudication” is not itself specifically defined in the statutes, its meaning can be ascertained from an examination of the definitions of other related terms.
Forfeiture – Personal Jurisdiction: Service, § 801.10(4)(a)
State v. One 1997 Ford and David Beck, 2003 WI App 128, PFR filed 6/6/03
For Beck: Adam B. Stephens, Alex Flynn
Issue/Holding: Although a party must “show strict compliance with the requirements of” § 801.10(4)(a) when service is challenged, it is not necessary to “submit an affidavit in which the process server specifically states that he or she served the defendant with ‘authenticated’ copies or did so to the best of his or her knowledge.”