On Point blog, page 45 of 216
Right to a public trial. Lay testimony about events depicted on surveillance video.
State v. Amos L. Small, 2013 WI App 117; case activity
Right to a public trial
The circuit court appropriately excluded a person from the courtroom under State v. Ndina, 2009 WI 21, 315 Wis. 2d 653, 761 N.W.2d 612, after the prosecutor asserted the had threatened a state’s witness after her testimony. (¶9). While Small’s lawyer objected to the exclusion of the person on the grounds it violated Small’s right to a public trial and was based on a hearsay statement,
Dog sniff and search of car were unlawful because officer unreasonably extended the duration of the stop
State v. Kenneth C. House, 2013 WI App 111; case activity
House was stopped for operating with a suspended registration. After running House’s license and learning he was on probation for a drug offense, the officer returned House’s license and issued him a warning for the suspended registration. The officer then retrieved his police dog who, after sniffing around the vehicle, alerted on the driver and passenger doors.
Plea withdrawal granted because bargain was “illusory”
State v. Myron C. Dillard, 2013 WI App 108, petition for review granted, 2/19/14, affirmed, 2014 WI 123; case activity
Dillard accepted a plea bargain under which a persistent repeater allegation was dismissed, thus apparently reducing his maximum penalty exposure by avoiding a mandatory life sentence without prospect of release. But Dillard was not really subject to the persistent repeater law,
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,