On Point blog, page 161 of 215
Counsel – Conflict of Interest – Prior Representation by Prosecutor: Unrelated Civil Forfeiture
State v. Peter G. Tkacz, 2002 WI App 281, PFR filed 11/14/02
For Tkacz: Mark S. Rosen
Issue: Whether the prosecutor’s prior representation of the defendant in a civil forfeiture worked a disqualifying conflict of interest.
Holding: The standard for analyzing the existence of a conflict of interest (raised before trial) in serial representation is the “substantial relationship” test, ¶15 ( State v.
Mandatory Penalty – Controlled Substances, Suspension/Revocation of Operating Privileges
State v. Jacob E. Herman, 2002 WI App 28, PFR filed 1/16/02
For Herman, Jack E. Schairer, Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶1 Jacob Herman appeals from the sentencing portion of a judgment convicting him of possession of THC contrary to WIS. STAT. § 961.41(3g)(e). The circuit court suspended Herman’s operating privilege for six months after concluding that it had no discretion to impose less than the minimum suspension mandated by WIS.
Counsel – Ineffective Assistance – Deficient Performance – Failure to Hire Expert
State v. Dale H. Chu, 2002 WI App, PFR filed 4/23/02
For Chu: Andrew Shaw
Issue/Holding: Counsel’s failure to retain an arson expert wasn’t deficient performance, where there was no indication the fire was anything other than arson, and defendant didn’t have sufficient funds to hire an expert. ¶¶50-52
Territorial Jurisdiction – Retention of Jurisdiction over Lesser Offenses
State v. Anthony J. Randle, 2002 WI App 116, PFR filed 4/2/02
For Randle: Paul G. Bonneson
Issue: Whether territorial jurisdiction, acquired over the charged offense, may be lost over a lesser offense whose elements do not include any committed within the state.
Holding:
¶20 … Like criminal subject matter jurisdiction, once territorial jurisdiction attaches, it will continue until a final disposition of the case.
Defenses – “Statutory Double Jeopardy,” § 939.71 – Conviction of Lesser Offense as Bar to Homicide Prosecution following Victim’s Subsequent Death
State v. Trevor McKee, 2002 WI App 148, PFR filed 6/28/02
For McKee: Kenneth P. Casey, SPD, Jefferson Trial
Issue/Holding: Drafters of § 939.71 intended to incorporate general principles of law of double jeopardy as then (1953) existed – which includes the “necessary facts” exception (prosecution of greater not barred by conviction of lesser offense where all facts necessary to conviction of greater had yet to come into existence).
Defenses – “Statutory Double Jeopardy,” § 939.71 – Federal Bank Robbery and State Armed Robbery
State v. Douglas J. Lasky, 2002 WI App 126, PFR filed 5/1
For Lasky: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: The elements of federal bank robbery, 18 USC § 2113(d), and state armed robbery, § 943.32(2), don’t exactly overlap, therefore conviction of former doesn’t bar prosecution of latter under § 939.71. ¶¶18-28.
Defenses – Statute of Limitations – Tolling – § 939.74(4)
State v. James D. Miller, 2002 WI App 197, PFR filed 8/2/02
For Miller: Matthew H. Huppertz, Craig Kuhary, Daniel P. Fay
Issue/Holding: A verdict form requiring the jury to find that the offense occurred between March 1, 1989, and November 28, 1992, adequately established a time period for the offense. And, by finding that the victim was unable to complain due to the effects of the sexual contact or efforts by the defendant,
Constitutional Defenses – Notice of Charge – Vague Charging Period
State v. James D. Miller, 2002 WI App 197, PFR filed 8/2/02
For Miller: Matthew H. Huppertz, Craig Kuhary, Daniel P. Fay
Issue/Holding: The charging period of March 1, 1989, to March 31, 1993, was not too expansive to provide opportunity to prepare a defense, largely because of the victim’s youthfulness and vulnerable relationship (patient-therapist) to defendant, ¶31; and because the alleged offenses occurred during therapy sessions,
Defenses – Claim/Issue Preclusion — Prior Dismissal — SVP Proceeding
State v. Kenneth Parrish, 2002 WI App 263, PFR filed 11/11/02
For Parrish: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether a 980 petition was barred because a prior petition was dismissed at trial for insufficient proof, but the respondent was subsequently returned to prison on a parole revocation for a violation not involving an act of sexual violence.
Holding:
¶22. Although Parrish’s preclusion argument presents an issue of first impression in Wisconsin,
Enhanced Penalties — Waiver of Objection to Sufficiency of Repeater Proof
State v. James O. Edwards, 2002 WI App 66, PFR filed 2/18/02
For Edwards: Glenn C. Cushing, SPD, Madison Appellate
Issue: Whether failure to object to exhibits (uncertified copy of judgment of conviction; DOC fax indicating prior periods of confinement) waived an argument that the state failed to prove Edwards’ repeater status.
Holding: Failure to object to documentation that facially establishes repeater status waives the issue of sufficiency of proof;