On Point blog, page 59 of 214
Confrontation – Generally – Forfeiture by Wrongdoing – Harmless Error; Other Acts Evidence: Pornography (& Intent to Kill); Consent to Search; Judicial Bias
State v. Mark D. Jensen, 2011 WI App 3; prior history: 2007 WI 26; for Jensen: Terry W. Rose, Christopher William Rose, Michael D. Cicchini; case activity; (Jensen BiC not posted); State Resp.; Jensen Reply
Confrontation – Generally
The Confrontation Clause regulates testimonial statements only, such that nontestimonial statements are excludable only under hearsay and other evidence-rule ¶¶22-26,
Search Incident to Arrest: Automobile
State v. Tracy Smiter, 2011 WI App 15; for Smiter: Mayaan Silver; case activity; Smiter BiC; State Resp.; Reply
During a routine traffic stop, passenger Smiter threw out of the window a substance the officer concluded was a marijuana blunt. Smiter was arrested for possession of marijuana (he concedes on appeal probable cause for the arrest) and the car then searched,
Warrantless Entry: Community Caretaker Exception
State v. Kathleen A. Ultsch, 2011 WI App 17(recommended for publication); for Ultsch: Shelley Fite, SPD, Madison Appellate; case activity; Ultsch BiC; State Resp.; Reply
Warrantless entry into a home, supposedly to check on the well-being of a suspected drunk driver just involved in an accident, wasn’t justified under the community caretaker doctrine; State v.
Appellate Procedure: Void Orders and Finality
Dustardy H. v. Bethany H., 2011 WI App 2; case activity
¶1 This case emphasizes once again the importance of finality in our justice system. In 2004, the circuit court erroneously granted Dustardy H. parental rights to Christian R. H., a child conceived via artificial insemination by Dustardy’s same-sex partner, Bethany H.[1] Four years later, after Dusty and Beth ended their relationship, Beth moved to void the parental rights order under WIS.
Search & Seizure: Consent to Enter – Expectation of Privacy (Overnight Guest) – Exigent Circumstances
State v. Miguel A. Ayala, 2011 WI App 6; for Ayala: Martin E. Kohler, Craig S. Powell; case activity; Ayala BiC; State Resp.; Reply
Search & Seizure – Consent to Enter
Based on trial court findings on disputed facts, the resident of an apartment gave the police consent to enter a bedroom and look for Ayala (as to whom,
Sentencing Conditions, § 973.049(2): No-Contact Order – “Victim” Definition
State v. Mark Allan Campbell, 2011 WI App 18; for Campbell: Steven D. Phillips, SPD, Madison Appellate; Campbell BiC;State Resp.; Reply
(Issue of plea bargain breach discussed in separate post, here.)
On sentencing Campbell for sexual assault of his daughter, the trial court had, and properly exercised, authority under § 973.049(2) to bar Campbell’s contact with his son until completion of sex offender treatment.
Plea Bargain Breach: Prosecutorial Failure to Make Agreed IC-Recommendation not Material Breach
State v. Mark Allan Campbell, 2011 WI App 18; for Campbell: Steven D. Phillips, SPD, Madison Appellate; Campbell BiC; State Resp.; Reply
(Sentencing issue in the case discussed separately, here.)
Plea Bargain – Breach
The plea agreement required the prosecutor to recommend a 20-year sentence, comprised of 5-7 years’ confinement and the balance on extended supervision,
Guardianship – Respondent’s Right to Personal Presence
Jefferson County v. Joseph S., 2010 WI App 160 (recommended for publication); for Joseph S.: Margaret A. Maroney, SPD, Madison Appellate
Failure of trial court to warn guardianship respondent of possibility of removal from courtroom for disruptive behavior prior to ordering his removal deprived court of competency to proceed.
¶5 A determination that a person “is incompetent … is as difficult a judgment as a judge is called upon to make,” and thus the legislature has adopted procedural requirements “to mitigate the chances of error.” Byrn v.
DNA Surcharge – Timeliness of Challenge
State v. Raymond Allen Nickel, 2010 WI App 161 (recommended for publication); pro se; State Resp.; Robert R. Henak, WACDL, Amicus Brief
Nickel’s challenge to his DNA surcharge was untimely, because made outside the direct appeal time limits:
¶5 When a defendant moves to vacate a DNA surcharge, the defendant seeks sentence modification. Pursuant to WIS. STAT. § 973.19, a defendant may move for sentence modification within ninety days after sentencing.
“In-Home Seizure” – “Constructive Entry”
City of Sheboygan v. Brian J. Cesar, 2010 WI App 170 (recommended for publication); for Cesar: Andrew Mishlove, Lauren Stuckert; Cesar BiC; City Resp.; Reply; AG Amicus
Police, investigating a recent traffic accident, knocked on Cesar’s door and rang his doorbell “numerous” times for up to 10 minutes, and threatened to remain until he came out or they got a warrant;