On Point blog, page 165 of 215
Forfeiture — Return of Seized Property — “Excessive Fine”
State v. Kirk J. Bergquist, 2002 WI App 39
For Berhquist: Steven H. Gibbs
Issue: Whether the state’s refusal to return guns valued at between $5000 and $7,150, following conviction for disorderly conduct, violated the Eighth Amendment Excessive Fines Clause.
Holding:
¶8. Although the term ‘forfeiture’ does not appear in this statute, our supreme court has recognized that the result of refusing to return a weapon to a person who committed a crime using the weapon is a forfeiture.
Reasonable Suspicion – Stop – Duration – Automobile — Prolonged to determine if Driver Had Valid License
State v. Vernell T. Williams, 2002 WI App 306
For Williams: Michael A. Haakenson
Issue: Whether a stop whose purpose (to investigate possible connection to an earlier crime) had dissipated was unlawfully prolonged by a checking the driver’s license.
Holding:
¶19. In State v. Ellenbecker, 159 Wis. 2d 91, 464 N.W.2d 427 (Ct. App. 1990), we held that a request for a driver’s license from a driver whose vehicle was disabled,
Reasonable Suspicion — Stop — Duration — Prolonged to Seek Consent to Search Automobile
State v. Vernell T. Williams, 2002 WI App 306
For Williams: Michael A. Haakenson
Issue/Holding:
¶24. It is true that when an officer has fulfilled the purpose of a lawful stop, the officer’s request for permission to search the vehicle does not, in itself, transform the stop into an unlawful one. State v. Gaulrapp, 207 Wis. 2d 600, 558 N.W.2d 696 (Ct.
Reasonable Suspicion – Stop – Basis: Matching Description of Automobile Under Investigation for Earlier Crime
State v. Vernell T. Williams, 2002 WI App 306
For Williams: Michael A. Haakenson
Issue: Whether reasonable suspicion supported the stop of defendant’s car four days after a reported domestic abuse incident, because the car generally matched the description of the suspect’s car.
Holding:
¶14. We conclude that Officer Garcia did have knowledge of facts sufficient to provide a reasonable suspicion that the driver of the vehicle had been involved in the domestic abuse incident.
Reasonable Suspicion – Stop – Basis – Test – Within Residence
State v. Jeffrey Stout, 2002 WI App 41, PFR filed 2/21/02
For Stout: James L. Fullin, Jr., SPD, Madison Appellate
Issue: Whether Stout was seized when police entered the residence.
Holding:
¶21. … (W)e are left with the presence of three officers in the room and whether their presence, absent the display of a weapon, physical contact or use of language, was sufficient to establish a seizure.
Attempted Child Enticement, §§ 939.32, 948.07(1) — Adult Posing as Child Online
State v. Thomas W. Grimm, 2002 WI App 242
For Grimm: Daniel W. Hildebrand
Issue/Holding: State v. Robins, 2002 WI 65, 253 Wis. 2d 298, 646 N.W.2d 287, and State v. Koenck, 2001 WI App 93, 242 Wis. 2d 693, 626 N.W.2d 359, which permit enticement charges where a fictitious online “victim” is thought by the defendant to be a child,
Attempted Second-degree Sexual Assault, §§ 939.32, 948.02(2) — Adult Posing as Child Online
State v. Thomas W. Grimm, 2002 WI App 242
For Grimm: Daniel W. Hildebrand
Issue/Holding: The rationale of State v. Robins, 2002 WI 65, 253 Wis. 2d 298, 646 N.W.2d 287, and State v. Koenck, 2001 WI App 93, 242 Wis. 2d 693, 626 N.W.2d 359, which permit enticement charges where a fictitious online “victim” is thought by the defendant to be a child,
§ 940.02 (1969), Second-Degree Intentional Murder — Sufficiency of Evidence (Battered Child)
State v. Arden C. Hirsch, 2002 WI App 8For Hirsch: Paul G. LaZotte, UW Law School, LAIP
Issue: Whether the evidence was sufficient to sustain conviction for second-degree murder, § 940.02 (1969).
Holding: Discrepancies between the parent’s version of what happened to the child and medical expert testimony as to what could not have, or what must have, happened to produce the injuries is crucial. ¶7. Persuasive medical evidence that the child died as result of sever injury,
§ 940.02, First Degree Reckless Homicide — Refusal to Instruct on, as Lesser Offense
State v. Jon P. Barreau, 2002 WI App 198, PFR filed 8/12/02
For Barreau: Glenn C. Reynolds
Issue: Whether the first-degree intentional homicide defendant was entitled to an instruction on the lesser offense of first-degree reckless homicide.
Holding: Barreau must show a reasonable basis for negating intent to kill. The victim was killed by multiple blows to the head with a baseball bat.
§ 940.31(1)(b), Kidnapping — Sufficiency of Evidence — “Confinement”
State v. Charles J. Burroughs, 2002 WI App 18
For Burroughs: William F. Mross
Issue/Holding: The term “confine” has been defined under § 940.30 (false imprisonment), to mean compelled deprivation of free movement. ¶18. Therefore, the definition of “confine” in Wis JI-Criminal No. 1275 applies to kidnapping. ¶19. Applying that definition: physical force isn’t essential; nor is the victim required to undertake the risk presented by an opportunity to escape.