On Point: B. Published opinions

State v. Shelleen B. Joyner, 2002 WI App 250, PFR filed 10/24/02
For Joyner: Margaret A. Maroney, SPD, Madison Appellate

Issue: Whether the pretrial statement of defendant’s sister, who failed to appear at trial, was admissible as a statement against penal interest, § 908.045(4).

Holding: A hearsay statement must be broken into its constituent parts, each viewed separately. ¶18. This statement has two parts.

State v. Robert Bintz, 2002 WI App 204, affirmed on habeas review, Robert Bintz v. Bertrand, 403 F.3d 859 (7th Cir 2005)
For Bintz: Elizabeth A. Cavendish-Sosinski

Issue/Holding: Confessions to fellow inmates are sufficiently reliable to allow admissibility without confrontation.

Issue/Holding: The codefendant’s (defendant’s brother) against-penal-interest statement to the police didn’t violate the confrontation clause, where the declarant “was not in custody and there is no indication he was threatened with prosecution or asked leading questions.”

State v. Robert Bintz, 2002 WI App 204, affirmed on habeas review, Robert Bintz v. Bertrand, 403 F.3d 859 (7th Cir 2005)
For Bintz: Elizabeth A. Cavendish-Sosinski

Issue: Whether the codefendant’s noncustodial statement to the police — which, although not acknowledging responsibility for the murder, did admit to threatening the victim and placing both defendants at the scene —

State v. Jon P. Barreau, 2002 WI App 198, PFR filed 8/12/02
For Barreau: Glenn C. Reynolds

Issue/Holding: A line of inquiry that suggests potential bias is relevant; however, the witness’s “real and appreciable apprehension” of self-incrimination trumps the right of confrontation. In such an instance it may be necessary to prevent the witness from testifying or to strike portions of his or her testimony.

State v. Dale H. Chu, 2002 WI App, PFR filed 4/23/02
For Chu: Andrew Shaw

Issue: Whether defendant was denied his right to exculpatory evidence when the state failed to disclose that a prosecution witness had received favorable treatment in another case.

Holding:

¶37. As the State notes, prosecutions that end in dismissal and ordinance violations are not admissible to impeach a witness because they are not ‘evidence that the witness has been convicted of a crime.’

State v. Tito J. Long, 2002 WI App 114, PFR filed 5/23/02
For Long: Ann T. Bowe

Issue/Holding: Evidence of gang affiliation is admissible (if state shows that defendant in fact was affiliated) to show witness’ bias, per United States v. Abel, 469 U.S. 45, 52 (1984). ¶¶17-19.

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;

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,

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.)

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,