On Point: 46. WI Court of Appeals

State v. Kirk J. Bergquist, 2002 WI App 39
For Berhquist: Steven H. Gibbs

Issue: Whether the state’s refusal to return guns valued at between $5000 and $7,150, following conviction for disorderly conduct, violated the Eighth Amendment Excessive Fines Clause.

Holding:

¶8. Although the term “forfeiture” does not appear in this statute, our supreme court has recognized that the result of refusing to return a weapon to a person who committed a crime using the weapon is a forfeiture.

State v. Jeffrey R. Groth, 2002 WI App 299, PFR filed 12/11/02
For Groth: Peter Koneazny, Randall E. Paulson, SPD, Milwaukee Appellate

Issue/Holding:

¶22. A defendant who asks for resentencing because the court relied on inaccurate information must show both that the information was inaccurate and that the court relied on it. Id. The defendant carries the burden of proving both prongs-inaccuracy of the information and prejudicial reliance by the sentencing court-by clear and convincing evidence.

State v. Bernard G. Tainter, 2002 WI App 296, PFR filed 12/23/02

Issue/Holding:

¶14. Wisconsin Const. art. I, § 7, grants criminal defendants the right to a trial “by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law.” Tainter claims this provision conflicts with Wis. Stat. § 980.02(4) and (5),

State v. Thomas Treadway, 2002 WI App 195
For Treadway: Lynn E. Hackbarth

Issue: Whether a probation and parole agent was properly allowed to give an opinion regarding the likelihood of the respondent reoffending.

Holding:

¶29. The fact that Kittman was not a psychologist or mental health specialist did not preclude his testimony. Under Wis. Stat. § 907.02 (1997-98), relevant experience,

State v. Jon P. Barreau, 2002 WI App 198, PFR filed 8/12/02
For Barreau: Glenn C. Reynolds

Holding: A witness’s pending criminal charges are relevant to bias, even absent promises of leniency, ¶55. In this instance, the trial court prohibited cross-examination about whether the witness was receiving benefits from the state for his testimony, but only after the witness testified outside the jury’s presence that there were none.

State v. Jon P. Barreau, 2002 WI App 198, PFR filed 8/12/02
For Barreau: Glenn C. Reynolds

Issue/Holding: A line of inquiry that suggests potential bias is relevant; however, the witness’s “real and appreciable apprehension” of self-incrimination trumps the right of confrontation. In such an instance it may be necessary to prevent the witness from testifying or to strike portions of his or her testimony.

State v. Brian B. Burke, 2002 WI App 291, PFR filed 11/29/02
For Burke: Robert H. Friebert

Issue/Holding:

¶4. First, as the trial court noted, we may not read our 1848 constitution using modern definitions and syntax. We are to examine:

(1) The [nineteenth century] plain meaning of the words in the context used;

(2) The historical analysis of the constitutional debates and of what practices were in existence in 1848,

State v. Peter G. Tkacz, 2002 WI App 281, PFR filed 11/14/02
For Tkacz: Mark S. Rosen

Issue: Whether the prosecutor’s prior representation of the defendant in a civil forfeiture worked a disqualifying conflict of interest.

Holding: The standard for analyzing the existence of a conflict of interest (raised before trial) in serial representation is the “substantial relationship” test, ¶15 ( State v.

State v. Jacob E. Herman, 2002 WI App 28, PFR filed 1/16/02
For Herman, Jack E. Schairer, Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding:

¶1     Jacob Herman appeals from the sentencing portion of a judgment convicting him of possession of THC contrary to WIS. STAT. § 961.41(3g)(e).  The circuit court suspended Herman’s operating privilege for six months after concluding that it had no discretion to impose less than the minimum suspension mandated by WIS.

State v. Dale H. Chu, 2002 WI App, PFR filed 4/23/02
For Chu: Andrew Shaw

Issue/Holding: Counsel’s failure to retain an arson expert wasn’t deficient performance, where there was no indication the fire was anything other than arson, and defendant didn’t have sufficient funds to hire an expert. ¶¶50-52