On Point blog, page 44 of 214
Court of Appeals: Pattern jury instruction on self-defense for reckless or negligent crimes does not provide a proper statement of the state’s burden of proof
State v. Langston C. Austin, 2013 WI App 96; case activity
In this important case the court of appeals holds that the pattern jury instruction for self-defense in cases involving reckless or negligent crimes does not properly apprise the jury that the state has the burden to prove the defendant did not act in self-defense.
Austin stabbed two people during a confrontation on a street and was charged with two counts of first-degree recklessly endangering safety with a dangerous weapon.
TPR: Waiver of jury and stipulation to elements doesn’t survive subsequent appeal, reversal, and remand
Walworth County DH&HS v. Roberta J.W., 2013 WI App 102; consolidated case activity: 2012AP2387; 2012AP2388
The County petitioned to terminate Roberta’s parental rights in 2007 on the grounds her children were in continuing need of protection and services. After a jury trial and dispositional hearing her rights were terminated, but on appeal the termination order was reversed and remanded for a new fact-finding hearing. (¶4).
Exposing genitals to a child, § 948.10, is limited to situations involving face-to-face contact and therefore doesn’t cover “sexting”
State v. Zachary P. Stuckey, 2013 WI App 98; case activty
The court of appeals concludes that the prohibition in § 948.10 against exposing genitals to a child is a “variable obscenity” statute, and to avoid unconstitutional application it must be read to require proof the defendant knew he was exposing himself to someone under the age of 18. Because the statute does not explicitly include that element,
Guest Post: Marcus Berghahn on the Court of Appeals decision upholding the use of hearsay at preliminary hearings
State v. Martin P. O’Brien, State v. Kathleen M. O’Brien, and State v. Charles E. Butts, 2013 WI App 97.
As briefly noted in a previous post, the Court of Appeals has upheld Wis. Stat. § 970.038, which makes hearsay admissible at preliminary hearings and allows bindover based solely on hearsay. On Point is pleased to present this guest post about the decision by Attorney Marcus Berghahn,
Court of Appeals upholds statute making hearsay admissible at preliminary hearings and allowing bindover based solely on hearsay
State v. Martin P. O’Brien, State v. Kathleen M. O’Brien, and State v. Charles E. Butts, 2013 WI App 97; consolidated court of appeals decision; case activity: Martin O’Brien; Kathleen O’Brien; Charles Butts.
¶1 The newly enacted Wis. Stat. § 970.038 (2011-12) makes hearsay evidence admissible at a criminal defendant’s preliminary examination and permits the probable cause determination and bindover decision at a preliminary examination to be based “in whole or in part” on hearsay evidence.
Judge’s invocations of religious deity were “ill-advised,” but do not show he imposed sentence based on religious considerations
State v. Robert J. Betters, 2013 WI App 85; case activity
When sentencing of Betters for child sexual assault, the judge stated that “every child is a gift from God,” and indicated Betters’s conduct toward the victims was “an abomination in the sight of God and in the sight of man, and … totally unacceptable.” ( ¶¶4, 15). The court of appeals rejects Betters’s claim that these references show the judge sentenced Betters based on religious considerations because the “offhand religious references”
Plea bargain breach by prosecutor — negative allocution
State v. Aaron L. Wood, 2013 WI App 88; case activity
The state did not breach the plea agreement where the prosecutor, after making the agreed-upon recommendation, expressed alarm and concern at what he discovered in the PSI after the plea agreement was made and referred in his sentencing argument to the negative portions of the PSI. State v. Williams, 2002 WI 1,
Substitution of judge — § 971.20(4),(5); reassignment of original judge does not make the judge “new” for substitution purposes. Admission of evidence — limiting the playing of audio recordings. Armed robbery, § 943.32 — sufficiency of the evidence.
State v. Keith M. Bohannon, 2013 WI App 87; case activity
Substitution of judge; “new” judge under § 971.20(5)
When a case is reassigned from the original judge to a second judge and then reassigned again back to the first judge, the first judge is the “original” judge assigned to the case under § 971.20(4), not a “new” judge under § 971.20(5). Therefore, a motion to substitute the original judge had to be filed before the arraignment,
Request for maximum sentence by police officers who were also victims did not breach plea agreement
State v. London Mack Stewart, 2013 WI App 86; case activity
Stewart was convicted of reckless injury, reckless endangerment, and felon in possession after he shot at and injured a police officer executing a warrant at a home where Stewart was staying. (¶2). Under the plea agreement the state agreed to recommend a “global” 25-year sentence (15 in, 10 out); the state did so, but the injured officer,
Habeas corpus provides remedy where parent’s lawyer failed to file timely appeal in TPR case
Amy W. v. David G., 2013 WI App 83; case activity
David G.’s parental rights were terminated in a proceeding commenced by the child’s mother. He filed a timely notice of intent to pursue postdisposition relief, but his appointed appellate counsel failed to file a notice of appeal before the deadline. (¶3). That deadline cannot be extended because the legislature has decreed that the time for filing an appeal in a TPR case may not be enlarged when the petition was filed by someone other than “a representative of the public.”