On Point blog, page 46 of 214
Miranda custody; “private safety” exception to Miranda
State v. Corey J. Uhlenberg, 2013 WI App 59; case activity
Miranda custody
Uhlenberg was in “custody” during an interview at the police department, so the circuit court should have suppressed the statements Uhlenberg made during the interrogation after he requested an attorney:
¶11 Throughout its arguments, the State emphasizes the fact that the detective repeatedly told Uhlenberg that he was not under arrest.
Privileges — Confidential informant, § 905.10(3)(b) — sufficiency of information to trigger in camera review
State v. Jessica A. Nellessen, 2013 WI App 46, petition for review granted 10/15/13; case activity
Under the two-step procedure for determining whether a confidential informant’s identity should be disclosed, the court must first determine whether there is reason to believe that the informant may be able to give testimony “necessary to a fair determination of the issue of guilt or innocence.” If there is reason to so believe,
Self-incrimination — waiver of right to exclude immunized testimony and evidence; no need for personal colloquy with defendant; ineffective assistance of counsel
State v. Mark J. Libecki, 2013 WI App 49; case activity
Self-incrimination — waiver of right to exclude immunized testimony and evidence; no need for personal colloquy
In this case the court of appeals holds that when a defendant waives the right to exclude at trial immunized testimony or evidence derived from that testimony, the circuit court need not engage in a personal colloquy with the defendant on the record,
Probation – increase in length of term based on crime being an act of domestic abuse; notice of potential increase; factual basis for finding the act constituted domestic abuse
State v. John R. Edwards, 2013 WI App 51; case activity
The longer period of probation applicable to a misdemeanor act of domestic abuse under Wis. Stat. § 973.09(2)(a)1.b. may be ordered even though the charging documents did not allege the crime was an act of domestic abuse.
Edwards was charged with substantial battery, strangulation and suffocation, and disorderly conduct based on an incident with his live-in girlfriend.
Search of home — apparent authority to consent; scope of consent; plain view
State v. Royce Markel Wheeler, 2013 WI App 53; case activity
Police went to a duplex in response to domestic abuse complaint from what they believed was the lower unit, with the caller saying she had been assaulted and was bleeding. (¶¶2, 4-6). After officers spent some 20 minutes knocking on the duplex’s common front door and yelling, a woman named Bates opened the door, saying she lived in the upper unit.
Miranda violation — interrogation by police; sentencing — erroneous exercise of discretion
State v. Antoine Leshawn Douglas, 2013 WI App 52; case activity
Miranda violation — interrogation by police
After a lawful arrest, but before being given Miranda warnings, Douglas initiated a conversation with the arresting officer in which he stated he wanted “to work” for the police by offering information about some marijuana dealers. After the officer declined that offer there was a “pause,” followed by Douglas changing the subject and volunteering information about a gun;
South Milwaukee ordinance restricting residency of sex offenders upheld against ex post facto and double jeopardy challenges
City of South Milwaukee v. Todd J. Kester, 2013 WI App 50; case activity
Sex offender residency restrictions – constitutionality; ex post facto and double jeopardy
South Milwaukee’s ordinance prohibiting persons convicted of certain child sex offenses from living within 1,000 feet of a school or other facility frequented by children does not violate the double jeopardy or ex post facto prohibitions of the state or federal constitution:
¶31 Kester fails to offer the “clearest proof”
Ineffective assistance of counsel – failure to object to admission of, and expert opinion based on, autopsy reports prepared by another pathologist; failure to object to evidence of prior felony convictions
State v. Willie M. McDougle, 2013 WI App 43; case activity
Failure to object to admission of, and expert opinion based on, autopsy reports prepared by another pathologist
Trial counsel was not ineffective for failing to object on confrontation clause grounds to either the opinion testimony of the pathologist who did not conduct autopsy or the reports of pathologist who did conduct the autopsy because any failure to object was not prejudicial:
¶17 …[T]rial counsel’s decision not to object to Dr.
Conflict of interest – dual representation of defendant and a defense witness facing perjury charges
State v. Jesus C. Villarreal, 2013 WI App 33; case activity
Trial counsel was ineffective because he had an actual conflict of interest arising from his dual representation of both Villareal and a defense witness who had testified at Villarreal’s first trial (which ended in a hung jury ) and who, before the second trial, was accused of committing perjury during the first trial.
The witness was Villarreal’s sister,
Search and seizure – limitation on scope of consent to search; no duty for police to clarify ambiguous assertions of ownership or nonconsent
State v. Derik J. Wantland, 2013 WI App 36, petition for review granted 11/21/13; case activity
It was not unreasonable for the police to search a briefcase found in a vehicle during a traffic stop after the driver consented to a search of the car and the passenger did not unequivocally assert ownership of the briefcase and withhold consent to its search.