On Point blog, page 145 of 215
Ineffective Assistance – Counsel – Deficient Performance – Failure to Obtain DNA Tests
State v. Evan Zimmerman, 2003 WI App 196, (AG) PFR filed 9/10/03
For Zimmerman: Keith A. Findley, UW Law School
Issue/Holding: Counsel’s admittedly non-tactical failure to obtain DNA results on hair found on the victim’s pants and on scrapings from her fingernails was deficient, similar to State v. Glass, 170 Wis. 2d 146, 488 N.W.2d 432 (Ct. App. 1992):
¶40. Here,
Counsel – Ineffective Assistance – Deficient Performance – Failure to Offer Alternative Medical Testimony
State v. Evan Zimmerman, 2003 WI App 196, (AG) PFR filed 9/10/03
For Zimmerman: Keith A. Findley, UW Law School
Issue/Holding: Counsel’s failure to offer independent medical evidence that would have challenged the state’s expert as to the weapon used to kill the victim and that would have indicated that the murder was consistent with a sex crime, was deficient performance:
¶42. Given the particular facts of this case,
Counsel – Ineffective Assistance – Deficient Performance – Failure to Challenge Hypnotically Refreshed Testimony
State v. Evan Zimmerman, 2003 WI App 196, (AG) PFR filed 9/10/03
For Zimmerman: Keith A. Findley, UW Law School
Issue/Holding: Counsel’s failure to challenge a witness’s hypnotically refreshed testimony, as violating the guidelines of State v. Armstrong, 110 Wis. 2d 555, 329 N.W.2d 386 (1983), was deficient:
¶45. To begin, we are not persuaded by counsel’s explanation of his trial strategy.
Counsel – Ineffective Assistance – Deficient Performance – Failure to Investigate Potential Defense – Guilty Plea
State v. Harold C. Pote, III, 2003 WI App 30
For Pote: John A. Pray, Remington Law Center
Issue: Whether counsel was ineffective for failure to investigate a potential defense (inability to work for medical reasons) to one of two counts of nonsupport, where counsel complied with the defendant’s instruction to obtain a plea bargain involving no incarceration and the count with the potential defense was dismissed under the plea bargain.
Defenses – Territorial Jurisdiction, § 939.03 – Instructions
State v. Shon D. Brown, 2003 WI App 34, PFR filed 2/3/03
For Brown: Robert T. Ruth
Issue: Whether defendant was entitled to an instruction on territorial jurisdiction, § 939.03, where the offense was partially committed out of the state.
Holding:
¶23. The question of whether or when a jury must be instructed on the State’s burden to establish its territorial jurisdiction over a defendant for charged offenses appears to be one of first impression in Wisconsin.
Defenses – Statute of Limitations, § 939.74(1) – “DNA Complaint” as Satisfying
State v. Bobby R. Dabney, 2003 WI App 108, PFR filed 5/23/03
For Dabney: Lynn E. Hackbarth
Issue/Holding:
¶21. Here, it is undisputed that the DNA profile complaint and warrant were issued three days before the statute of limitations expired. We have already concluded that the complaint and warrant in this case were sufficient to commence the prosecution. Thus, the case was timely filed.
Fines – Guidelines, Applicability
State v. Bruce J. Kuechler, 2003 WI App 245
For Kuechler: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding: In sentencing for OWI, “it was not error for the court to seek guidance from the local guidelines” in determining the fine on an OWI sentence. ¶10, citing State v. Jorgensen, 2003 WI 105, ¶¶2, 27, __ Wis. 2d __, 667 N.W.2d 318,
Fines – Discretion to Impose
State v. Bruce J. Kuechler, 2003 WI App 245
For Kuechler: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding:
¶11. Second, Kuechler argues that “[e]ven if the size of the fine could be based exclusively on a guideline recommendation, the court here failed to give adequate reasons for choosing the more severe of two alternative guidelines.” We disagree. The court exercised appropriate discretion when it chose to impose a fine based on the guidelines that highlighted aggravating factors rather than on the guidelines that highlighted mitigating factors.
Fines – Ability to Pay – Determination
State v. Bruce J. Kuechler, 2003 WI App 245
For Kuechler: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding:
¶13. Fourth, Kuechler contends that the trial court imposed the fine without first ascertaining his ability to pay. We agree. Because Kuechler timely raised the issue of ability to pay in his postconviction motion, the trial court had a duty to make a determination on that issue.
Defenses – Issue Preclusion – Defensive Use Against Non-Party to Prior Case
Michael S. Johnson v. Berge, 2003 WI App 51
Issue/Holding: Review of issue preclusion is governed by Paige K.B. v. Steven G.B., 226 Wis. 2d 210, 594 Wis. 2d 370 (1999). The record isn’t sufficient to review the issue. ¶¶13-14.
For discussion on preclusive effect of state court suppression ruling on federal court dealing with same evidence, see U.S.