On Point blog, page 122 of 214
§ 948.21(1), Neglect, Causing Death – Element of “Person Responsible for Child’s Welfare,” § 948.01(3)
State v. Marketta A. Hughes, 2005 WI App 155, PFR filed
For Hughes: John T. Wasielewski
Issue/Holding:
¶16 We conclude that the plain language of the statute makes clear that a seventeen-year-old employed by a parent to care for the parent’s child can be a person responsible for the welfare of the child. The record reflects that Marketta freely chose to assume responsibility for the welfare of Bryan at her mother’s request.
Community Caretaker Exception to Warrant Requirement – Entry of Residence to Check on Occupant
State v. George Toland Ziedonis, 2005 WI App 249
For Ziedonis: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding: Police, responding to a “loose animal” complaint became sufficiently alarmed by the possibility the dogs’ owner was in need of assistance that their warrantless entry was justified under the community caretaker doctrine:
¶27 Like in Ferguson, the police “utilized alternative methods of confirming whether anyone was in the [residence] before entering.” 244 Wis.
Community Caretaker Exception to Warrant Requirement – Generally
State v. George Toland Ziedonis, 2005 WI App 249
For Ziedonis: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding:
¶14 One such exception is the community caretaker function, which arises when the actions of the police are “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” State v. Anderson, 142 Wis. 2d 162, 166, 417 N.W.2d 411 (Ct.
Attenuation of Taint – Arrest in Home, Payton Violation
State v. David J. Roberson, 2005 WI App 195, affirmed on other grounds, 2006 WI 80
For Roberson: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding: “(E)vidence acquired outside of the home after an in-home arrest in violation of Payton is not a product of the illegal governmental activity, if officers had probable cause to arrest developed apart from the illegal entry,” ¶23;
Consent – Coercion — Scope
State v. Shaun E. Kelley, 2005 WI App 199
For Kelley: Gregory Bates
Issue/Holding:
¶13 Kelley also argues that the search violated the scope of consent. He contends that an accelerant and phone handset could not have been found under his bed and therefore that place should not have been searched. We disagree. …
¶14 Here, the police were searching for a telephone handset and an accelerant.
Consent – Coercion — Police Failure to Inform of Real Purpose of Search
State v. Shaun E. Kelley, 2005 WI App 199
For Kelley: Gregory Bates
Issue/Holding:
¶12 Kelley contends that the police should have disclosed that they had reason to believe he had child pornography in his apartment. We are not persuaded that the detectives’ failure to disclose all their suspicions invalidated an otherwise validly obtained consent. This was not a case of deception or false pretext.
TPR – Substitution of Judge
Brown County DHS v. Terrance M., 2005 WI App 57
Issue/Holding:
¶11. The trial court ruled and the County now argues that Terrance’s substitution request was untimely because it was not filed before “hearing of any preliminary contested matters” under Wis. Stat. § 801.58. Terrance argues the applicable statute is Wis. Stat. § 48.29, which allows a request “either before or during the plea hearing ….”
TPR – Issue Preclusion, Applicability of Doctrine
Brown County DHS v. Terrance M., 2005 WI App 57
Issue/Holding: Because TPR cases are generally a subset of custody cases; and because claim preclusion is available as a means of discouraging groundless requests for modification of custody, both claim and issue preclusion “may also be applied when the facts so require” in TPRs, ¶¶8-9. (The court remands for determination of whether issue preclusion is appropriate in this instance,
Judicial Bias – Exposure to Relevant Information
State v. Somkith Neuaone, 2005 WI App 124
For Neuaone: Ralph Sczygelski
Issue/Holding: Where the sole basis for recusal is a claim that the judge was exposed to relevant sentencing information that he was entitled to hear, the very premise for the claim is flawed, ¶17.
¶16 Whether a judge was a “neutral and detached magistrate” is a question of constitutional fact which we review de novo and without deference to the trial court’s ruling.
Judicial Substitution – Delinquency, § 938.29(1)(m) – Review by Chief Judge
State of Wisconsin ex rel. Mateo D.O. v. Circuit Court, 2005 WI App 85
For Mateo D.O.: Colleen Bradley, SPD, Oshkosh Trial
Issue/Holding: The chief judge has authority to review denial of a substitution request in a delinquency proceeding, under §§ 938.29(1)(m) and 801.58(2). (Because § 801.58(2) is the more specific provision, it “applies when the juvenile’s request for substitution is denied,” ¶9; it plainly provides for “review[] by the chief judge of the judicial administrative district.”)
¶10.