On Point: B. Published opinions

State v. Jimmie R.R., 2004 WI App 168, motion for reconsideration denied 9/15/04

For Jimmie R.R.: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: Counsel’s failure to research admissibility of testimony which controlling caselaw plainly regards as confidential was deficient:

¶23. While Swierenga’s testimony was admissible, Geske’s was not. Crowell, which Greve reaffirmed, plainly instructs that information obtained during a court-ordered presentence investigation must remain confidential unless the court has specifically authorized its use under the limited confidentiality exception provided in Wis.

State v. Michael A. DeLain, 2004 WI App 79, PFR granted, on other grds.
For DeLain: Robert R. Henak

Issue/Holding: Trial counsel’s failure to “investigate and present evidence of exculpatory prior consistent statements DeLain made to co-workers” was not the product of deficient performance, given that DeLain never told counsel about these remarks, and that counsel interviewed all of the co-workers, ¶18.

Issue/Holding: Trial counsel’s failure to adduce expert testimony regarding the propriety of defendant’s “provocative therapy” approach in counseling youths was not deficient but,

State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz

Issue/Holding: Failure to locate and present the testimony of a potential alibi witness wasn’t deficient given counsel’s testimony that his investigator couldn’t locate the witness, along with Arredondo’s failure to convince the court that the investigator had been informed where the witness lived or could be located. ¶36.

Note: For authority all but saying that failure to file notice of alibi,

State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz

Issue: Whether trial counsel was ineffective for failing to investigate a theory of 3rd-party guilt, in the absence of any evidence linking that party to the crime.

Holding:

¶31. A trial attorney may select a particular defense from the available alternative defenses. Felton,

State v. Jeffrey A. Keeran, 2004 WI App 4, PFR filed 1/5/04
For Keeran: Joseph L. Sommers

Issue/Holding:

¶5 … The coercion defense is limited to the “most severe form of inducement.” State v. Amundson, 69 Wis. 2d 554, 568, 230 N.W.2d 775 (1975). It requires a finding “under the objective-reasonable man test, with regard to the reasonableness of the actor’s beliefs that he is threatened with immediate death or great bodily harm with no possible escape other than the commission of a criminal act.”

State ex rel Kim J. Barksdale v. Litscher, 2004 WI App 130

Issue/Holding:

¶13. Barksdale next argues that, even if the circuit court properly allowed the warden to raise claim preclusion as a defense, the defense must fail because all of the elements for claim preclusion are not present. The burden of proving claim preclusion is upon the party asserting its applicability. Alexopoulos v. Dakouras,

State v. Jason C. Miller, 2004 WI App 117, PFR filed 6/7/04
For Miller: Robert T. Ruth

Issue/Holding: Issue preclusion doesn’t bind subsequent action involving exclusion of evidence due to discovery violation, where sanctioned case was dismissed and then reissued and discovery begun anew:

¶22. In the second action, the facts were different in that Miller already had a copy of the expert’s summary.

State v. Jason C. Miller, 2004 WI App 117, PFR filed 6/7/04
For Miller: Robert T. Ruth

Issue/Holding: Judicial estoppel didn’t prevent admissibility of evidence excluded as discovery sanction in prior, dismissed but then reissued action, where judge who dismissed prior action after imposing sanction contemplated that the excluded evidence would not be barred in a new proceeding, ¶¶31-33.

State v. Larry N. Winsand, 2004 WI App 86, PFR filed 4/12/04
For Winsand: Ralph A. Kalal

Issue: Whether results of an Intoximeter EC/IR breath test was inadmissible because approval of this testing instrument by the chief of the DOT chemical test section involved standards that should have been but were not promulgated as administrative rules under ch. 227.

Holding:

¶7.

State v. James A. Schmidt, 2004 WI App 235
For Schmidt: Daniel S. Diehn

Issue: Whether § 343.305(5)(a) requires that the driver request an additional test after the police have administered the primary test and, if not, whether Schmidt’s pre-blood draw request for a breathalyzer was properly rejected.

Holding:

¶11. Although Wis. Stat. § 343.305(4) and (5) use the term “alternative test,”