On Point blog, page 171 of 214

Due Process – Exculpatory Evidence – Posttrial Destruction

State v. Jerry L. Parker,  2002 WI App 159, PFR filed 5/20/02
For Parker: William Christopher Rose

Issue: Whether posttrial destruction of potentially exculpatory evidence (taped drug transaction) requires new trial.

Holding:

¶14. A defendant’s due process rights are violated by the destruction of evidence (1) if the evidence destroyed is apparently exculpatory and of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means;

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Double Jeopardy – Prosecutorial Misconduct: Vindictiveness – More Onerous Plea Offer After Defendant Obtains Relief

State v. Peter G. Tkacz, 2002 WI App 281, PFR filed 11/14/02
For Tkacz: Mark S. Rosen

Issue/Holding: Even assuming that the law of vindictive prosecution (presumption of vindictiveness attaches to less favorable prosecutorial action following successful appeal) applies to failure to re-offer same plea bargain following reversal of conviction, the facts would not support vindictiveness. The prosecutor offered a less favorable resolution because he had additional evidence and a stronger case,

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Double Jeopardy – Multiplicity: Harassment Injunction (§ 813.125(4)) Not Lesser Offense of Harassment (§ 947.013(1r))

State v. Michael A. Sveum, 2002 WI App 105, PFR filed 5/10/02
For Sveum: Ian A.J. Pit

Issue/Holding: Violation of harassment injunction isn’t lesser offense of harassment, each requiring proof of distinct element. ¶¶23-28. (Court stressing, in particular, that for harassment defendant need only be “subject” to injunction but not actually violate it. ¶25.)

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SVP – Habeas Challenge to Commitment – Venue

State ex rel Edwin C. West v. Bartow, 2002 WI App 42
For West: Leonard D. Kachinsky

Issue: Whether the court had discretion to order change of venue from Winnebago (county of current SVP confinement) to Milwaukee (county of commitment), on habeas challenge to the commitment.

Holding: Venue was proper in Winnebago under § 801.50(4)(b) (where petitioner is being restrained); the trial court’s transfer mistakenly relied on § 801.50(4)(a) (where petitioner was convicted or sentenced,

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SVP- Trial: Evidence — Actuarial Instruments

State v. Bernard G. Tainter, 2002 WI App 296, PFR filed 12/23/02
For Tainter: Jack E. Schairer, SPD, Madison Appellate

Issue/Holding: The trial court properly exercised discretion in admitting into evidence actuarial instruments (by determining that they were of the type commonly relied on by experts to assess sex offender risk; and by allowing Tainter to cross-examine on the instruments). ¶20. In Wisconsin, trial courts have a limited “gatekeeper”

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Waiver of Objection: Stipulation

State v. Ronald J. Frank, 2002 WI App 31, PFR filed 1/2/02
For Frank: Jane K. Smith

Issue: Whether defendant waived review of objection to admissibility of misconduct evidence by entering into a “Wallerman” stipulation.

Holding: A stipulation under State v. Wallerman, 203 Wis. 2d 158, 552 N.W.2d 128 (Ct. App. 1996) (an element is conceded and the other-act isn’t admitted) waives the issue of admissibility:

¶5.

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Defendant’s Presence at Postconviction Hearing

State v. Paul L. Polak, 2002 WI App 120, PFR filed 5/3/02
For Polak: Philip J. Brehm
Issue/Holding: A defendant need not be produced for a postconviction hearing where there are no substantial issues of fact to resolve. ¶22.

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Mootness — Delinquency — Expired Dispositional Order

State v. Stephen T., 2002 WI App 2
For Stephen T.: Raymond M. Dall’Osto

Issue: Whether appeal of a juvenile delinquency adjudication is rendered moot by expiration of its dispositional order.

Holding: No, at least in this instance: certain facets of the order (DNA sample; sex offender registration) survive, and appellate review will therefore have a practical effect. ¶11. (The court doesn’t say whether its mootness holding is limited to offenses that incur these particular consequences.) Moreover,

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False Testimony

State v. Larry J. Sprosty, 2001 WI App 231, PFR filed

For Sprosty: Jack E. Schairer, SPD, Madison Appellate

Issue: Whether an expert witness’s testimony should have been struck retrospectively when it became known, after the proceeding had concluded, that he had lied about his credentials and background, and had committed misconduct, causing him to be fired.

Holding: “¶33. We cannot conclude that the circuit court’s refusal to strike Thomalla’s testimony was improper.

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Right to Counsel – Revocation

State ex rel. James A. Mentek, Jr., v. Schwarz, 2000 WI App 96, 235 Wis. 2d 143, 612 N.W.2d 746, reversed on other grounds, State ex rel. James A. Mentek, Jr. v. Schwarz, 2001 WI 32

Issue: Whether appointed counsel’s failure to exhaust administrative appeals, which resulted in waiver of the right of judicial review of a revocation, can be challenged as ineffective assistance of counsel.

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