On Point: B. Published opinions

State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate

Issue/Holding: Where the defendant’s brother testified that the non-testifying complainant had recanted, the prosecution could impeach the brother with the possibility that the complainant was motivated by fear due to the brother’s gang affiliation, ¶31: “A witness’s motive (whether testifying ‘live’ or by admission of his or her out-of-court assertions) is never collateral, 

State v. Justin Yang, 2006 WI App 48
For Olson: John J. Grau

Issue/Holding:

¶11      Inquiry into a witness’s bias is always material and relevant. State v. Williamson, 84 Wis. 2d 370, 383, 267 N.W.2d 337, 343 (1978) (bias and improper motive of witness are never collateral). John Henry Wigmore has characterized cross-examination as “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” 5 Wigmore,

State v. Nicole Schutte, 2006 WI App 135, PFR filed 7/21/06
For Schutte: Donald T. Lang, SPD, Madison Appellate

Issue/Holding1: Evidence of the driver’s marijuana use just before the accident resulting in the charged homicide by negligent use of vehicle was relevant and admissible:

¶48      Although the toxicology expert could not tie the level of THC detected in Schutte’s blood to a specific level of impairment,

State v. Keith S. Krause, 2006 WI App 43
For Krause: Roger G. Merry

Issue/Holding: Because collateral attack on a prior conviction used as a sentencing enhancer is limited to denial of counsel, and because the right to counsel does not attach to a civil proceeding, a refusal revocation is not subject to collateral attack on its use as an OWI enhancer:

¶12      In an enhanced-penalty situation,

State v. Jonathan Bell, 2006 WI App 30
For Bell: Leonard D. Kachinsky

Issue: Whether intervention of the local prosecutor to obtain a second DOC evaluation, which resulted in a referral for SVP commitment after the first DOC evaluation determined insufficient likelihood of reoffending, violated ch. 980 or due process.

Holding:

¶11      Our supreme court defined the scope of the district attorney’s authority in Byers.

State ex rel. Richard A. Ford (II) v. Holm, 2006 WI App 176, PFR filed 9/11/06; on appeal following remand in 2004 WI App 22 (“Ford I”)
For Ford: James R. Troupis
For Amicus: Joseph N. Ehmann, SPD, Madison Appellate

Issue/Holding: A client who has strategically foregone a potentially meritorious postconviction challenge is not entitled to the option of a “partial” no-merit report discussing remaining aspects of the case:

¶12 We conclude,

State v. Thomas A. Mikulance, 2006 WI App 69
Pro se

Issue/Holding: A “narrow” exception to the serial litigation bar of § 974.06(4) and State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994) is established by State v. Flowers, 221 Wis. 2d 20, 27, 586 N.W.2d 175 (Ct. App. 1998), which “applies only where the defendant files a motion alleging that the State has failed to prove the prior conviction necessary to sustain the habitual criminal status (by proof or by admission) or when the penalty imposed is longer than permitted by law for a repeater,” ¶¶1,

State v. Ricky J. Fortier, 2006 WI App 11

Issue/Holding: Fortier’s failure to respond to no merit report does not, under the circumstances, work serial litigation bar to subsequent, arguably meritorious challenge to sentence:

¶15      Fortier contends that he should not be precluded from raising the issue of a sentence illegally raised upon resentencing, even though he failed to raise it in a response to the no-merit report at the time of the original appeal. 

State v. Lamont D., 2005 WI App 264

Issue Whether the State sufficiently proved grounds to support TPR such that the court should change the jury’s special verdict to the contrary.

Holding: “Because the record contains contradictory evidence and a key witness did not testify, and because it is possible the jury did not believe that the State proved the six-month period of abandonment, the trial court’s refusal to change the verdict answer or to grant a new trial was not ‘clearly wrong,’” ¶1.

State v. Lavelle W., 2005 WI App 266

Issue/Holding:

¶2        Birth-parents “have constitutionally protected rights to raise their children as they see fit, and these rights may only be circumscribed if the government proves that there is a ‘powerful countervailing interest.’” Richard D. v. Rebecca G., 228 Wis. 2d 658, 661, 599 N.W.2d 90, 92 (Ct. App. 1999) (quoted sources and one internal quotation mark omitted).