On Point blog, page 453 of 484
Search & Seizure – Applicability of Exclusionary Rule — Violation of Nonconstitutional Right – Statutory Building Inspection Procedure
State v. Albert Jackowski, 2001 WI App 187
For Jackowski: Ronald C. Shiroka
Issue: Whether violation of a statutory requirement for issuance of a building inspection warrant (namely, the § 66.0119(2) condition that such a warrant be issued only upon showing that consent to enter was refused) supports suppression of evidence obtained after entry under the warrant.
Holding:
¶17. We accept, however, the State’s alternative argument that refusal of consent is not a constitutional requirement for issuance of an administrative warrant,
Administrative Searches — Warrants — Building Inspection
State v. Albert Jackowski, 2001 WI App 187
For Jackowski: Ronald C. Shiroka
Issue1: Whether review of issuance of an administrative warrant is entitled to the same deference as a criminal search warrant.
Holding: “Great deference” is no less accorded a magistrate’s decision to issue an administrative warrant than a criminal search warrant. ¶¶9-14.
Issue2: Whether a building inspection warrant must be supported by probable cause to believe code violations then exist in the building.
§ 948.31, Interference with Child Custody/Abduction: Construction of Elements
State v. Stanley A. Samuel, 2001 WI App 25, 240 Wis. 2d 756, reversed, other grounds, 2002 WI 34
For Samuel: Robert R. Henak
Issue: Whether the evidence was sufficient to sustain conviction for interference with child custody, § 948.31(2) and abduction, § 948.30(1)(a).
Holding:
¶38 We adopt the State’s construction. So long as the defendant has had a hand in physically removing the child from the parents’ possession,
§ 961.41(2), Maintaining Drug Residence — Amendment of Information at Close of Case
State v. Davon R. Malcom, 2001 WI App 291, PFR filed 11/27/01
For Malcom: John D. Lubarsky, SPD, Madison Appellate
Issue: Whether the trial court properly amended the information, after close of evidence, to add a charge of keeping a place “which is resorted to by persons using controlled substances” to the charge of using the same place to manufacture, keep or deliver controlled substances (both charges being alternatives under § 961.41(2).
Guilty Pleas – Plea-Withdrawal, Postsentence — Newly Discovered Evidence
State v. Dennis R. Fosnow, 2001 WI App 2, 240 Wis. 2d 699, 624 N.W.2d 883
For Fosnow: David D. Cook
Issue: Whether a postconviction diagnosis supporting an NGI defense amounted to newly discovered evidence, where the defendant had pled no contest after receiving unfavorable NGI evaluations.
Holding: The new diagnosis was merely a new appreciation of the importance of evidence previously known but not used and therefore didn’t satisfy the test for newly discovered evidence.
Plea-Withdrawal, Post-sentence – Procedure – Remedy, No Showing Defendant Understood All Elements
State v. Everardo A. Lopez, 2001 WI App 265
For Lopez: Margaret A. Maroney, SPD, Madison Appellate
Issue: Whether plea withdrawal is the appropriate remedy where the record contains no evidence that Lopez understood all elements of the offense
Holding:
¶22. The proper remedy upon determining that the State failed to establish that Lopez understood the elements of the offense with which he was charged when he entered his no contest plea is to remand the case to permit Lopez to withdraw his plea.
Plea-Withdrawal, Post-sentence — Procedure — Burden of Proof: Spanish-speaking Defendant, Untranslated Questionnaire
State v. Everardo A. Lopez, 2001 WI App 265
For Lopez: Margaret A. Maroney, SPD, Madison Appellate
Issue: Whether Lopez made a prima facie showing that the plea colloquy was inadequate.
Holding: The Spanish-speaking Lopez had problems, acknowledged by the trial court, communicating with his interpreter and necessitating a continuance of the plea hearing. At neither the aborted plea hearing or the subsequent one at which the plea was accepted did the trial court determine,
Extradition – Waiver of IAD Violation
State v. Mohammed A. Nonahal, 2001 WI App 39
For Nonahal: David R. Karpe
Issue: Whether the defendant waived a claimed violation of the Interstate Agreement on Detainers’ anti-shuttling provision, by requesting to be sent back to the sending jurisdiction before trial.
Holding:
¶8; … we conclude that rights granted under the anti-shuttling provision of the IAD are statutory in nature and may be waived if the prisoner requests a procedure inconsistent with the statute’s provisions….¶9;
Guilty Plea Waiver Rule – Issues Waived — Ex Post Facto Challenge<
State v. Alfredo Ramirez, 2001 WI App 158, PFR filed 7/11/01
For Ramirez: Elizabeth A. Cavendish-Sosinski
Issue: Whether Ramirez’s guilty plea waived an ex post facto challenge to the charged offense.
Holding: ¶4 n. 4:
We could invoke the guilty plea/waiver rule against Ramirez since he pled guilty to the charge after the trial court rejected his constitutional challenge. See State v.
Self-Defense – “McMorris” Acts of Prior Violence by Victim – Procedure on Determining Admisssibility
State v. Juan M. Navarro, 2001 WI App 225
For Navarro: Joseph M. Moore, SPD Trial, Juneau
Issue: Whether the trial court is required to conduct an in camera inspection of confidential records of the complaining witness, a correctional officer, relating to his possible abusive treatment of inmates, in a battery-by-prisoner trial where the defendant alleges self-defense.
Holding: The trial court’s denial of in camera inspection without first conducting an evidentiary hearing on materiality was erroneous: Access may not be denied simply because the records aren’t within the state’s possession;