On Point blog, page 186 of 214
Assessment of Pre-Existing Information not “Newly Discovered” — Sexually Violent Persons Proceeding
State v. Daniel Williams, 2001 WI App 155
For Williams: Adrienne M. Moore, SPD, Racine Trial
Issue: Whether the grant of a petition for supervised release (§ 980.08) can be vacated on the basis of a periodic re-examination report (§ 980.07) which is a mere assessment of the same information utilized during the supervised release proceeding.
Holding: A motion for relief from judgment, § 980.07,
§ 904.01, Relevance – Demonstrative Evidence
State v. Garren G. Gribble, 2001 WI App 227, PFR filed
For Gribble: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether a witness should have been permitted to demonstrate with a doll the force used to cause injuries to the child victim.
Holding: The fact that the experts couldn’t agree on the exact cause of the injuries goes to weight, not admissibility, of the demonstration.
Double Jeopardy – Multiplicity: Sexual Assault — Distinct Intrusions
State v. William Koller, 2001 WI App 253, PFR filed
For Koller: Peter M. Koneazny, SPD, Milwaukee Appellate
Issue: Whether distinct types of sexual assault (mouth-vagina and penis-vagina) necessarily support distinct counts.
Holding:
¶59 There is another reason Koller’s second multiplicity challenge fails. This second claim is directed primarily at the relationship between Count 4 (mouth-to-vagina contact), on the one hand, and Counts 3 and 5 (penis-to-vagina intercourse),
SVP – Trial: Expert Witnesses – Psychologist: Licensure
State v. Larry J. Sprosty, 2001 WI App 231, PFR filed
For Sprosty: Jack E. Schairer, SPD, Madison Appellate
Issue: Whether a psychologist must be licensed in Wisconsin to provide expert opinion in a Ch. 980 proceeding.
Holding: No: “the standard for determining the admissibility of expert testimony in this case is the general one, namely, whether it will be helpful to the trier of fact, so long as the expert is qualified by knowledge,
SVP – Postdisposition: Supervised Release – Revocation – Uncharged Rule Violation – Right to Notice
State v. Keith Alan VanBronkhorst, 2001 WI App 190
For VanBronkhorst: Jack E. Schairer, SPD, Madison Appellate
Issue: Whether revocation of supervised release from a ch. 980 commitment was properly based on an uncharged rule violation.
Holding:
¶9 … “(P)rocedural due process protections afforded in probation or parole revocation proceedings apply to supervised release revocation proceedings under ch. 980. “…¶15. Notice to comply with due process requirements must be given sufficiently in advance of scheduled court proceedings so that a defendant will have a reasonable opportunity to prepare.
SVP – Postdisposition – Right to independent expert
State v. Glenn Allen Thayer, 2001 WI App 51, 241 Wis. 2d 417, 626 N.W.2d 811
For Thayer: Jane K. Smith
Issue: Whether the commitment subject has a right to present an independent medical report at a petition for discharge probable cause hearing, § 980.09(2)(a).
Holding: Although a Ch. 980 patient does have the right submit an independent medical report to the court, ¶¶6-13, Wis Stat..
Waiver of Appeal — Arguably Meritorious Appellate Issue that Would Have Incurred Risk
State ex rel. Richard A. Ford (II) v. Holm, 2006 WI App 176, PFR filed 9/11/06; on appeal following remand in 2004 WI App 22 (“Ford I”)
For Ford: James R. Troupis
For Amicus: Joseph N. Ehmann, SPD, Madison Appellate
Issue/Holding: Given circuit court findings “that Ford affirmatively elected not to pursue any issue that would result in the withdrawal of his plea and the possible reinstatement of a second sexual assault charge,” he is deemed to have knowingly and voluntarily waived his right to pursue a postconviction challenge to his guilty plea;
Sentencing – Review – Articulation of Primary Factors in Setting PED
State v. David S. Leighton, 2000 WI App 156, 237 Wis.2d 709, 616 N.W.2d 126
For Leighton: Daniel Snyder
Issue/Holding: In setting parole eligibility date trial court need not separately refer to primary factors used in imposing sentence. ¶¶52-53.
§ 904.01, Relevance – Consciousness of Innocence – Offer to Take DNA Test
State v. Miguel Angel Santana-Lopez, 2000 WI App 122, 237 Wis.2d 332, 613 N.W.2d 918
For Santana-Lopez: Rex Anderegg
Issue: Whether a sexual assault defendant’s pretrial offer to take a DNA test is relevant as consciousness of innocence.
Holding: “(A)n offer to undergo DNA analysis [is] relevant to the state of mind of the person making the offer — so long as the person making the offer believes that the test or analysis is possible,
Functional Equivalent of Interrogation
State v. Ondra Bond, 2000 WI App 118, 237 Wis. 2d 633, 614 NW2d 552, affirmed by equally divided vote, 2001 WI 56, 243 Wis. 2d 476, 627 N.W.2d 484
For Bond: William Coleman; Janet Barnes; Ellen Henak, SPD, Milwaukee Appellate
Issue: Whether, following arrest but before administration of Miranda rights, an officer’s response to the suspect’s asking why he’d been arrested was the functional equivalent of interrogation and therefore in violation of Miranda.