On Point: B. Published opinions

State v. Jeffrey D. Walli, 2011 WI App 86 (recommended for publication); for Walli: Chad A. Lanning; case activity

Trial court factual findings made from a combination of live testimony and video evidence are reviewed deferentially, under the “clearly erroneous” standard of review; the court rejects de novo review of the video recording. Here, it is a police squad video of a traffic stop, with the officer testifying (and the trial court finding) that Walli in fact crossed the center line,

State v. Andre D. Hansbrough, 2011 WI App 79(recommended for publication); for Hansbrough: Amelia L. Bizzaro; case activity

Verdict Forms – Harmless Error

Failure to provide a not guilty verdict option with a lesser included offense instruction is, although error, not structural but is instead subject to analysis for harmlessness, ¶¶10-17.

¶9        At the outset, we reject Hansbrough’s contention that there must always be a not guilty verdict form for each guilty verdict form. 

State v. Calvin Jerome Pirtle, 2011 WI App 89(recommended for publication); for Pirtle: Christopher J. Cherella; case activity

Consent to Search – Georgia v. Randolph

Pirtle’s failure to object to the police presence allowed them to act on the co-tenant’s consent to a warrantless search under Georgia v. Randolph, 547 U.S. 103 (2006):

¶15      In Randolph,

State v. Eliseo Peralta, 2011 WI App 81(recommended for publication); for Peralta: Martin J. Pruhs; case activity

Conspiracy, § 939.31 – “Overt Act”

The “overt act” element of conspiracy, though it must go “beyond mere planning and agreement,” may be “virtually any act,” even if “insignificant,” ¶¶19-21. Thus, Peralta’s “communication to an undercover police detective that a large quantity of cocaine was ready for immediate delivery”

Dane County v. Kelly M., 2011 WI App 69 (recommended for publication); for Kelly M.: Ruth N. Westmont, Ashley J. Richter; case activity

Kelly M. appeals a commitment order premised on the “fifth standard,” inability by reason of mental illness to understand the advantages and disadvantages of medication or treatment for the mental illness.

¶3        We conclude as follows:  (1) Commitment is available under the fifth standard for individuals who have dual diagnoses—that is,

State v. Michael D. Below, 2011 WI App 64 (recommended for publication); for Below: Joseph L. Sommers; case activity

Below indisputably caused massive injuries that resulted in the victim’s death, albeit after medical staff terminated life support. His reckless acts were therefore a “substantial factor” in, hence caused, her death. He was not entitled to a theory of defense instruction authorizing the jury to acquit him on the basis that the termination of life support was an intervening cause of death.

State v. Darron D. Jackson, 2011 WI App 63 (recommended for publication); for Jackson: Rebecca Lawnicki; case activity

Waiver – Lesser Offense Instruction

The jury convicted Jackson of recklessly endangering safety while armed, which was submitted as a lesser offense of the charged offense, attempted first-degree intentional homicide. Although Jackson did object to the endangering instruction on the ground that it wasn’t supported by the facts,

State v. Herbert O. Richard, 2011 WI App 66 (recommended for publication); for Richard: Steven D. Grunder, SPD, Madison Appellate; case activity

Changes in the scoring of the actuarial test which was used to support Richard’s commitment at his original trial, cannot support his discharge petition even though his new score would reduce his predicted likelihood of reoffending.

¶13      Richard argues that the circuit court improperly dismissed his petition for discharge and that he is entitled to a discharge hearing. 

Village of Menomonee Falls v. Jason R. Ferguson, 2011 WI App 73 (recommended for publication); for Ferguson: Daniel P. Fay; case activity

Ferguson’s guilt for violating local sex offender residence-restriction ordinance upheld, as against argument that he fell within grandfather clause exception. The ordinance bars registered sex offenders from living within 1500 feet of any facility for children, but excepts an offender who had established and reported a residence prior to the ordinance’s effective date.

Fond du Lac County v. Helen E. F., 2011 WI App 72(recommended for publication), affirmed 2012 WI 50; for Helen E.F.: Donald T. Lang, SPD, Madison Appellate; case activity

Alzheimer’s disease is not a qualifying mental condition for purposes of ch. 51 commitment, therefore Helen E.F. is not a proper subject for treatment as a matter of law. The disease is a degenerative brain disorder,