On Point blog, page 54 of 214
Traffic Stop Duration: Passenger
State v. Jamie L. Salonen, 2011 WI App 157 (recommended for publication); for Salonen: Robert J. Wells, Jr.; case activity
¶1 The trial court in this case granted Jamie L. Salonen’s motion to suppress evidence obtained after she asked to leave the scene of a roadside stop of a vehicle in which she was a passenger, which request was denied by police. A passage in Arizona v.
Interest-of-Justice Review: Post-Trial Revelations Undermining State’s Witnesses
State v. Kenneth M. Davis, 2011 WI App 147 (recommended for publication); for Davis: Robert R. Henak; case activity; reissuance after prior decision withdrawn
Several items of testimony, coming to light after trial, directly contradict the trial testimony of the main State’s witnesses, leading the court to conclude that the real issue in controversy – Davis’s alleged involvement in a drug-house robbery and murder of an occupant –
Sentencing Discretion: DNA Surcharge
State v. Scott R. Long, 2011 WI App 146 (recommended for publication); for Long: Jeff T. Wilson; case activity
DNA surcharge, conditioned on Long not having previously provided sample or having paid surcharge, upheld as proper exercise of discretion:
¶8 Here, the circuit court ordered the DNA sample contingent on whether one had previously been provided. If the sample had not previously been provided, the circuit court reasoned that the DNA surcharge was appropriate because “it would be for a sample provided in connection with this case.” This explanation is consistent with the rationale of the circuit court which we affirmed in Jones.
Ineffective Assistance of Counsel: Failure to Challenge Invalid DNA Search Warrant – Lack of Prejudice; Right to Present Defense: DNA Evidence
State v. Omark D. Ward, 2011 WI App 151 (recommended for publication); for Ward: Mary Scholle, SPD, Milwaukee Appellate; case activity
Ineffective Assistance of Counsel – DNA Search Warrant
Court commissioner’s order that Ward provide DNA sample violated “oath or affirmation” requirement for warrants:
¶10 Unless a person consents to giving a sample of his or her DNA, or there are exigent circumstances, or there are other exceptions that are not material here,
Sentencing Guidelines: No Remedy for Omitted Offense
State v. Jeffrey S. Firebaugh, 2011 WI App 154 (recommended for publication); pro se; case activity
Because the Wisconsin Sentencing Commission had created no guideline “applicable” to Firebaugh’s offense (homicide by intoxicated use of a motor vehicle), he isn’t entitled to resentencing on the basis of failure to “consider” a (non-existent) guideline.
¶12 At the time of Firebaugh’s sentencing, neither the CPSC nor the Commission had developed a sentencing guideline for homicide by intoxicated use of a motor vehicle.
Waiver of Right to Counsel: Adequacy – Reinstatement
State v. Joel D. Rhodes, 2011 WI App 145; for Rhodes: Chris L. Hartley; case activity
Self-Representation – Adequacy of Waiver of Right to Counsel
The trial court undertook a valid waiver of counsel, pursuant to State v. Klessig, 211 Wis. 2d 194, 206, 564 N.W.2d 716 (1997):
¶18 We reject Rhodes’s claim. The circuit court conducted a colloquy with Rhodes that the State aptly describes as exemplary.
State v. Little A. Stewart, 2011 WI App 152
court of appeals decision (recommended for publication); for Little: Jeffrey W. Jensen; case activity
Probable Cause to Arrest
¶14 In Stewart’s case, the pertinent facts are:
• On March 10, 2009, a reliable confidential informant told Agent Gray that one of the people who had been arrested with Alderman McGee was going to be bringing cocaine to Milwaukee. After Gray obtained the names and photographs of individuals who had been arrested in Alderman McGee’s case and showed them to the informant,
Newly Discovered Evidence: New Forensic Method, Photogrammetric Analysis; Interest-of-Justice Review
State v. Brian K. Avery, 2011 WI App 148 (recommended for publication), supreme court review granted, 2/23/12; for Avery: Keith A. Findley; case activity; prior 974.06 appeal: 2008AP500-CR; direct appeal: 1997AP317
Newly Discovered Evidence – New Forensic Method – Photogrammetric Analysis
Expert photogrammetric opinion, derived from video enhancement technology (“VISAR”) not commercially available until after Avery’s trial,
Appellate Procedure: “Waiver,” Distinguished from “Forfeiture” – Civil Case Necessity of Post-Trial Motion
J. K. v. Mark Peters, 2011 WI App 149 (recommended for publication); case activity
Appellate Procedure – “Waiver,” Distinguished from “Forfeiture”
¶1 n. 1:
In using the term “waiver,” we are aware of the recently decided case of State v. Ndina, 2009 WI 21, 315 Wis. 2d 653, 761 N.W.2d 612, where our supreme court clarified the distinction between the terms “forfeiture” and “waiver.” See id.
Hearing-Impaired Juror: Inability to Hear Certain Testimony; Evidence: Haseltine “Vouching” Testimony – Harmless Error
State v. James T. Kettner, 2011 WI App 142 (recommended for publication); for Kettner: Andrew R. Hinkel, Jefren E. Olsen, SPD, Madison Appellate; case activity
Hearing-Impaired Juror – Inability to Hear Certain Testimony
A juror’s inability to hear most of alleged victim S.K.’s answers in a videotaped interview didn’t violate Kettner’s rights to impartial jury or due process, given that S.K. also testified in person consistent with her videotaped answers.