On Point blog, page 64 of 214
Guardianship/Protective Placement – GAL Interview of Ward outside Presence of Adversary Counsel
Jennifer M. v. Franz Maurer, 2010 WI App 8
Issue: “(W)hether a circuit court has authority to order a represented adult ward to submit to an interview with her guardian ad litem, outside the presence of her counsel and over her attorney’s objection, where the order also requires the guardian ad litem to report the content of the interview to the circuit court,” ¶1.
Holding:
¶11 The policies underlying the no-contact rule are of sufficient importance in guardianship cases that the right to counsel guaranteed by Wis.
Self-Incrimination: Inapplicable to Reconfinement Hearing
State v. Travis Joe Brimer, Jr., 2010 WI App 57; for Brimer: Lora B. Cerone, SPD, Madison Appellate; Resp. Br.; Reply Br.
“The right against self-incrimination only applies at criminal proceedings or “other proceeding … where the answers might incriminate [the defendant] in future criminal proceedings.” Allen v. Illinois, 478 U.S. 364, 368 (1986) (citations omitted),” ¶7. Because a reconfinement hearing isn’t part of the criminal process,
Voluntary Statement: Following Voluntary Miranda Waiver
State v. Dionny L. Reynolds, 2010 WI App 56; for Reynolds: Russell D. Bohach; BiC; Resp. Br.
Statement voluntary, following multiple interviews while in custody on unrelated offense:
¶45 Balancing Reynolds’ personal characteristics against the totality of the police detectives’ conduct, we note, first and foremost, that Reynolds voluntarily waived his Miranda rights before making his incriminating statement. Generally speaking,
Sentencing Guidelines: General Purpose – Retroactive Repeal, § 973.017(2)(a); Statutory Construction: § 990.04
State v. Thomas H.L. Barfell, 2010 WI App 61; for Barfell: Roberta A. Heckes; BiC; Resp. Br.; Reply Br.; App. Supp. Br.; Resp. Supp. Br.
Sentencing – Guidelines, General Purpose
¶7 While Barfell is correct that he “has a due process right ‘to be sentenced on the basis of true and correct information’ pertaining to ‘the offense and the circumstances of its commission … and the defendant’s personality,
Briefs – Issue-Selection, Generally
S.C. Johnson v. Milton E. Morris, 2010 WI App 6, PFR filed 12/30/09
Issue/Holding: ¶5 n. 1:
Justice Robert Hansen once wrote the now familiar phrase that “[a]n appellate court is not a performing bear, required to dance to each and every tune played on an appeal.” State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555,
Writs – Certiorari – Administrative Decision-Making Based Wholly on Uncorroborated Hearsay Insufficient
Michelle Williams v. Housing Authority of the City of Milwaukee, 2010 WI App 14
Issue/Holding:
¶13 The circuit court reversed the Housing Authority’s denial of rent assistance because it concluded that, under Gehin v. Wisconsin Group Insurance Board, 2005 WI 16, 278 Wis. 2d 111, 692 N.W.2d 572, the Housing Authority could not base its decision solely on uncorroborated hearsay evidence (the officer’s written notes recalling the witness’s statement of what Williams said),
Reasonable Suspicion – Stop/Detention – Duration/Intensity – Handcuffed, Placed in Squad in Absence of Suspected Weapons
State v. Sameeh J. Pickens, 2010 WI App 5, reconsideration denied 1/20
For Pickens: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: A temporary detention is narrowly circumscribed, in terms of duration and intensity, by the least intrusive means necessary to dispel suspicion¸¶27. Thus, in the absence of any reason to believe weapons were present, use of handcuffs on Griffin was unjustified, ¶30.
¶33 In sum,
First Amendment – Overbreadth: Sexual Assault of Child, § 948.02, Not Unconstitutionally Overbroad re: “Proper Medical Purpose”
State v. Christopher J. Lesik, 2010 WI App 12, PFR filed
For Lesik: Anthony Cotton
Issue/Holding: Sexual assault (intercourse) of a child, § 948.02, isn’t unconstitutionally overbroad, against a theory that it criminalizes acts undertaken for “proper medical purpose.” Although the statute is silent with respect to medical conduct, potential overbreadth may be cured through judicial construction and the court therefore “conclude(s) here that ‘sexual intercourse’ as used in the sexual assault of a child statute does not include ‘bona fide medical,
Closing Argument: Prosecutorial Misconduct – Interest-of-Justice Review
State v. Clifford D. Bvocik, 2010 WI App 49; for Bvocik: James C. Murray
Prosecutorial Misconduct – Closing Argument
Improper prosecutorial closing argument—encouraging jury to draw false inference—requires new trial in interest of justice; State v. Robert H. Weiss, Jr., 2008 WI App 72, controlling:
¶1 State v. Weiss, 2008 WI App 72, ¶¶15-17, 312 Wis. 2d 382,
Counsel: Failed but Adequate Investigation; Interest-of-Justice Review: Critical Evidence (Absence of Herpes) Not Heard by Jury
State v. Jeffrey A.W., 2010 WI App 29; for Jeffrey A.W.: Hans P. Koesser
Adequacy of Counsel Investigation
Counsel’s attempt to demonstrate the absence of herpes in the defendant—an issue central to this sexual assault prosecution—was, although a failure, not the product of deficient performance.
¶12 There is no question that trial counsel’s investigation yielded the wrong information. But that does not necessarily equate to deficient performance.