On Point blog, page 195 of 215
Attenuation of Taint — Search Warrant
State v. Kenneth M. Herrmann, 2000 WI App 38, 233 Wis. 2d 135, 608 N.W.2d 406
For Herrmann: Peter J. Morin
Issue: Whether the search warrant for Herrmann’s apartment was supported by evidence sufficiently untainted by an illegal entry into his apartment.
Holding: The untainted discovery of nine marijuana plants, prior to the occurrence of the illegal police action, provided probable cause to believe that other contraband would be found in the apartment,
Exigency — Blood Alcohol
State v. Robert W. Wodenjak, 2001 WI App 216, PFR filed 8/31/01
For Wodenjak: Rex Anderegg
Issue: Whether administration of a blood test, following OWI arrest, was reasonable under the fourth amendment, where the police first rejected the driver’s request for a (less invasive) breath test.
Holding: As long as the standard for warrantless blood draw established by State v. Bohling,
Search & Seizure – Applicability of Exclusionary Rule — Government Action – Conduct by Non-Police Officer Pursuant to Court Order
State v. Robert C. Knight, 2000 WI App 16, 232 Wis.2d 305, 606 N.W.2d 291.
For Knight: Scott B. Taylor.
Issue: Whether seizure of a disbarred attorney’s client files by a court-ordered trustee amounted to governmental action so as to trigger fourth amendment protections.
Holding:
¶8 Here, Garczynski’s seizure and search of Knight’s client files were conducted pursuant to an order issued by Judge Carlson under the authority conferred on the circuit courts by the Wisconsin Supreme Court in Rule 22.271(2).
Guilty Pleas – Suppression Appeal (§ 971.31(10)) – Harmless Error Analysis
State v. Jerome G. Semrau, 2000 WI App 54, 233 Wis. 2d 508, 608 N.W.2d 376
For Semrau: John D. Lubarsky, SPD, Madison Appellate
Issue: Whether (assumed) erroneous refusal to suppress evidence was harmless on appeal following guilty plea, under Wis. Stat. § 971.31(10).
Holding: Strength of admissible evidence, apart from unsuppressed evidence, placed Semrau in “significant risk of conviction,” so that there was no reasonable probability that the suppression ruling caused him to plead guilty,
§ 904.01, Relevance – Consciousness of Guilt — as Distinct from Misconduct Evidence
State v. Michael R. Bauer, 2000 WI App 206, 238 Wis. 2d 6887, 617 N.W.2d 902
For Bauer: Thomas Voss
Issue: Whether evidence that the defendant, while awaiting trial, solicited the murders of people who were going to testify against him was admissible.
Holding:
¶2 Bauer argues that the solicitation evidence was other acts evidence which was improperly admitted pursuant to Wis. Stat.
§ 904.01, Relevance – Silence in Face of Accusation
State v. Ondra Bond, 2000 WI App 118, 237 Wis. 2d 633, 614 N.W.2d 552, affirmed by equally divided court, 2001 WI 56.
For Bond: William Coleman; Janet Barnes, Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding: The prosecution may not use at trial the fact that a defendant stood mute in the face of an accusation. ¶27.
§ 904.01, Relevance – Victim’s Medical Records
State v. Frank M. Ruszkiewicz, 2000 WI App 125, 237 Wis. 2d 441, 613 N.W.2d 893
For Ruszkiewicz: Mark S. Rosen
Issue: Whether the trial court erred in refusing to order production of the victim’s police and medical records, sought on the theory that they might show a condition that would cause her to bruise easily and, therefore, refute the element of force as demonstrated by her bruises.
Plea Bargains – Breach: By Prosecutor — Failure to Comply with Express Terms of Sentencing Recommendation
State v. Robert D. Hanson, 2000 WI App 10, 232 Wis.2d 291, 606 N.W.2d 278
For Hanson: Suzanne L. Hagopian, SPD, Madison Appellate.
Issue: Whether the prosecutor breached the plea bargain by failing to expressly recommend the agreed 10 year sentencing cap, on a 15-year exposure.
Holding: Even though the prosecutor did not expressly recite the 10-year cap, the parties had “referred generally to the sentencing recommendation provision of the plea agreement a number of times,”
Plea Bargains – Breach: By Prosecutor — Less Than Neutral Recitation of Recommendation
State v. Robert D. Hanson, 2000 WI App 10, 232 Wis.2d 291, 606 N.W.2d 278
For Hanson: Suzanne L. Hagopian, SPD, Madison Appellate.
Issue: Whether the prosecutor undermined a 10-year sentencing cap by emphasizing that “this is an extremely violent case,” along with other aggravating factors.
Holding: By stressing to the trial court that she was standing by the plea agreement, “the prosecutor strongly affirmed the plea agreement and did not make any statements that expressly,
Particular Examples of Misconduct, § 904.04(2) — Prior Resisting Arrest — Similarity to Charged Offense
State v. Thomas W. Koeppen, 2000 WI App 121, 237 Wis.2d 418, 614 N.W.2d 530
For Koeppen: Richard L. Zaffiro
Issue: Whether a prior act involving drunken resisting arrest was properly admitted into evidence.
Holding: The prior act was admitted on the permissible purposes of showing intent and absence of mistake; had probative value due to strong similarities to the current offense; and, given high probative value along with cautionary instruction,