On Point blog, page 105 of 214
Due Process – Exculpatory Evidence, Failure to Disclose – Impeachment: Not Material, Where Cumulative
State v. Xavier J. Rockette (II), 2006 WI App 103, PFR filed 6/29/06 (prior unrelated appeal involving same defendant, different case: 2005 WI App 205)
For Rockette: Timothy A. Provis
Issue/Holding: Failure to disclose evidence that a prosecution witness had falsely implicated Rockette in another homicide did not violate Brady, because it would not have had an impact on the outcome of the trial:
¶41 Evidence of impeachment is material if the witness whose testimony is attacked “supplied the only evidence linking the defendant(s) to the crime,” United States v.
Due Process – Right to Present Defense – Prosecution Witness’s Attempts to Curry Favor in Other Cases – Cumulative to Credibility
State v. Xavier J. Rockette (II), 2006 WI App 103, PFR filed 6/29/06 ( prior unrelated appeal involving same defendant, different case: 2005 WI App 205)
For Rockette: Timothy A. Provis
Issue/Holding: Excluding evidence that in other, unrelated instances a witness had lied to the police in an attempt to curry favor in his own criminal cases did violate Rockette’s right to present a defense,
Due Process – Presumptions, Generally
State v. Eric Benjamin Gardner, 2006 WI App 92
For Gardner: Michael K. Gould, SPD, Milwaukee Appellate
Issue/Holding:
¶9 In addressing this issue, it is first necessary to define what a presumption is and when a presumption denies a criminal defendant due process. A presumption allows a “trier of fact to determine the existence of an element of the crime–that is, an ‘ultimate’ or ‘elemental’ fact–from the existence of one or more ‘evidentiary’ or ‘basic’ facts.” Ulster County Court v.
Equal Protection – Rational Basis Test – Punishment Classification Scheme
State v. Gerald L. Lynch, Jr., 2006 WI App 231, PFR filed 11/6/06
For Lynch: David R. Karpe
Issue: Whether a higher level of scrutiny applies to an equal protection challenge to a prison early release program which categorically withholds eligibility from certain types of crimes.
Holding:
¶13 The State, on the other hand, argues that we should employ the lower level of scrutiny,
Equal Protection – Statutory Ineligibility for Earned Release Program
State v. Gerald L. Lynch, Jr., 2006 WI App 231, PFR filed 11/6/06
For Lynch: David R. Karpe
Issue: Whether statutory ineligibility for Earned Release, § 973.01(3g), for homicide by intoxicated use violates equal protection given eligibility for driving while intoxicated but not causing death or great bodily harm.
Holding:
¶18 Applying this standard, we conclude there is a rational basis for not allowing persons convicted of crimes under Wis.
OWI – Enhancer – Collateral Attack on OWI-1st
State v. Joseph J. Hammill, 2006 WI App 128. For Hammill: Patrick J. Stangl
Issue/Holding:
¶15 Hammill argues the circuit court erred by counting a Village of Cameron conviction. Hammill was arrested in that case for OWI-first on January 1, 1991. On January 28, Hammill was arrested for OWI in Eau Claire, which was also charged as a first offense. Hammill pled to both OWI-first cases on the same day,
Enhancer – Collateral Attack – Transcript Missing from Enhancer Case, & Defendant’s Prima Facie Burden
State v. Joseph J. Hammill, 2006 WI App 128
For Hammill: Patrick J. Stangl
Issue/Holding:
¶6 A defendant may collaterally attack a prior conviction in an enhanced sentence proceeding only on the ground that the defendant was denied the constitutional right to counsel. …
¶7 Hammill argues that he made a prima facie showing that he did not knowingly and voluntarily waive his right to counsel.
Costs — Attorney Fees – Constitutional Limits, Recoupment: Indigency Determination
State v. Kevin J. Helsper, 2006 WI App 243
For Helsper: Glenn L. Cushing, SPD, Madison Appellate
Issue/Holding:
¶7 Constitutional limits on a state’s recoupment of attorney fees are grounded in both due process and equal protection principles. Bearden v. Georgia, 461 U.S. 660, 665 (1983). Recoupment statutes must be tailored to “impose an obligation only upon those with a foreseeable ability to meet it,
Earned Release Program (“ERP”) – Exercise of Discretion to Determine Eligibility
State v. Jonathan Owens, 2006 WI App 75, PFR filed 4/4/06
For Owens: Dianne M. Erickson
Issue: Whether the sentencing court’s initial denial of ERP eligibility, seemingly on the improper basis of the defendant’s age, was a proper exercise of discretion where on motion for reconsideration the court “stated that it had intended to refer to Owens’s age regarding his eligibility for the Challenge Incarceration Program only [and] then explained why it had denied Owens’s participation in the ERP and denied the motion for reconsideration.”
Holding:
¶9 Owens complains that even though the trial court set forth an explanation for its sentence,
Earned Release Program – Statutory Ineligibility Due to Type of Crime – Equal Protection (and Substantive Due Process)
State v. Gerald L. Lynch, Jr., 2006 WI App 231, PFR filed 11/6/06
For Lynch: David R. Karpe
Issue: Whether statutory ineligibility for Earned Release, § 973.01(3g), for homicide by intoxicated use violates equal protection given eligibility for driving while intoxicated but not causing death or great bodily harm.
Holding:
¶18 Applying this standard, we conclude there is a rational basis for not allowing persons convicted of crimes under Wis.