On Point blog, page 420 of 484
Search & Seizure – Applicability of Exclusionary Rule – Violation of Nonconstitutional Right – Investigative Stop Outside Officer’s Jurisdiction
State v. James W. Keith, 2003 WI App 47, PFR filed 3/5/03
For Keith: Christopher A. Mutschler
Issue/Holding: Evidence not suppressible merely because seized by officer effectuating stop outside of his or her jurisdiction: there is no “reason to ignore the well-established rule that suppression is required only when evidence is obtained in violation of a constitutional right or in violation of a statute providing suppression as a remedy,”
Judicial Bias – (Non-Pecuniary) Stake in Outcome
State v. Terrance J. O’Neill, 2003 WI App 73
For O’Neill: Roger D. Sturdevant, SPD, Monroe
Issue: Whether a judge’s persistent and partisan efforts to require litigation on a recurrent issue on which the court of appeals had already reversed him, in an unpublished case in which the judge actively appeared as a party on the appeal, establishes disqualifying bias.
Holding: Bias not established: The judge intends to require litigation on the disputed issue in every case,
Plea-Withdrawal, Post-Sentencing – Procedure – Proof of Knowledge of Elements / Remedy for Lack of Proof<
State v. John A. Jipson, 2003 WI App 222
For Jipson: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
¶16. Jipson’s answers, while incriminating, have no bearing on the focus here. That is, the answers do not establish Jipson knew the State had to prove the purpose of the sexual contact was an element of the crime. The critical inquiry is whether Jipson otherwise knew at the time of entering his plea all of the essential elements of the offense so that it can be said he knowingly pled guilty to the crime.
Plea-Withdrawal, Post-Sentencing – Procedure – Burden of Proof
State v. John A. Jipson, 2003 WI App 222
For Jipson: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
¶7. When challenging a guilty or no contest plea, the defendant has the initial burden to produce a prima facie case comprised of the following two parts. First, the defendant must show the trial court accepted the defendant’s guilty plea without conforming to Wis. Stat. § 971.08 or other mandatory procedures.
Contempt — General Procedure, Remedial vs. Punitive
Evans v. Luebke, 2003 WI App 207, PFR filed 10/23/03
Issue/Holding: Contempt is an inherent judicial power, but is legislatively regulated, such that its exercise outside the statutory scheme is proscribed. ¶17. The required statutory procedure is determined by whether the contempt is remedial or punitive. The latter punishes past conduct for the purpose of upholding authority of the court, § 785.01(2) it may be brought only by a prosecutor (DA,
First Amendment – Overbreadth – Travel Restrictions – “Banishment” from Victim’s County
Predick v. O’Connor, 2003 WI App 46
Issue/Holding: Banishment from victims’ county, under harassment injunction, § 813.125, upheld:
¶18 Thus, banishment is not a per se constitutional violation. As the previous discussion demonstrates, there is no exact formula for determining whether a geographic restriction is narrowly tailored. Each case must be analyzed on its own facts, circumstances and total atmosphere to determine whether the geographic restriction is narrowly drawn.
Extradition Procedure – Waiver of Potential IAD (§ 976.05) Violation by Conduct — Discharge of Counsel
State v. Andrew S. Miller, 2003 WI App 74, PFR filed 4/11/03
For Miller: Brian C. Findley, SPD, Madison Appellate
Issue/Holding:
¶12. This court has found that rights under the Detainer Act “are statutory in nature and may be waived by a defendant’s request for a procedure inconsistent with its provisions.” Brown, 118 Wis. 2d at 386. By firing his lawyer six days before the scheduled start of trial and twenty-eight days before the expiration of the time period,
Evidence Code Construction, Generally – Judicial Council Committee’s View
State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03
For Kutz: T. Christopher Kelly
Issue/Holding: While not bound by the Judicial Council Committee Note, the court of appeals nonetheless “view(s) it as significant authority in construing the rule.” ¶40. (See also id., n. 16: “In promulgating the rules of evidence, the Wisconsin Supreme Court stated that it was not adopting either the commentary of the Federal Advisory Committee or the Wisconsin Judicial Council Committee,
§ 901.03, Objection/Offer of Proof – Pretrial: Definitive Ruling Properly Preserves Objection; Conditional Ruling Doesn’t
State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03
For Kutz: T. Christopher Kelly
Issue/Holding: “A definitive pretrial ruling preserves an objection to the admissibility of evidence without the need for an objection at trial, as long as the facts and law presented to the court in the pretrial motion are the same as those that arise at trial.” ¶27. The trial court’s “definitive” rulings on Kutz’s pretrial hearsay objections preserved the issue of admissibility of those statements,
Guilty Plea Waiver Rule – Issues Waived — Suppression — Preserved by § 971.31(10)
State v. James S. Riedel, 2003 WI App 18, PFR filed 1/27/03
For Riedel: Ralph A. Kalal
Issue/Holding:
¶8. At the outset, we reject the State’s threshold argument that Riedel is precluded from challenging the trial court’s suppression ruling based on Riedel’s conviction on the OWI charge and the dismissal of the PAC charge. The State reasons that Riedel’s appeal lacks a justiciable controversy because he has failed to argue that he would not have pled to the OWI charge if the trial court had granted the suppression motion or that the OWI evidence would have been insufficient absent the blood test results.