On Point blog, page 69 of 214
Reasonable Suspicion – Basis – Traffic Stops – Administrative Code Equipment Violation (Excessive Tint) – Stop Effectuated by Local Police
State v. Dennis E. Bailey, 2009 WI App 140
For Bailey: Jeffrey W. Jensen
Issue/Holding1: The police have authority to stop a vehicle for an equipment violation of an administrative code provision incorporated under local ordinance:
¶17 Wisconsin Stat. § 349.02(2)(a) and (b) expressly allow a police officer to stop a vehicle for violation of a statute or ordinance enacted under this chapter.
Frisk of Automobile – Furtive Movement
State v. Dennis E. Bailey, 2009 WI App 140
For Bailey: Jeffrey W. Jensen
Issue/Holding: Court upholds frisk of vehicle, following stop for minor equipment violation (excessive window tint) in high crime area, where driver made furtive gesture (kicking motions under front seat) and officer testified that he saw a bag, which he thought contained a gun, protruding from under seat, ¶¶24-50. State v. Gary A.
Frisk of Automobile – Driver Wearing Empty Gun Holster
State v. Paul Anthony Butler, 2009 WI App 52, PFR filed 4/20/09
For Butler: Trisha R. Stewart Martin
Issue/Holding: “Frisk” of car supported by concern driver had gun, in that he was wearing an empty gun holster, ¶16.
Kidnapping, § 940.31(1)(b) – Elements – “Hold to Service Against Will”
State v. Jeremy Denton, 2009 WI App 78 / State v. Aubrey W. Dahl, 2009 WI App 78
For Denton: Paul G. Bonneson
For Dahl: Patrick M. Donnelly
Issue/Holding: Though merely incidental to robbery, kidnapping charge is supported on theory that ordering the victim to relinquish property holds that person to service against his or her will:
¶26 … The defendants contend that,
§ 940.19(5), Aggravated Battery – Intent Element not Refuted, Lesser Included Option of 2nd-Degree Reckless Injury not Supported on Facts
State v. James D. Miller, 2009 WI App 111, PFR filed 8/3/09
Pro se
Issue/Holding:
¶52 We conclude as a matter of law that shooting a person in the thigh at a range of sixteen feet with a shotgun is practically certain to cause at least a protracted loss or impairment of the function of the person’s leg, and is therefore injury constituting “great bodily harm” within the meaning of the statutes.
Battery to Peace Officer, § 940.20(2) – Elements: Officer Need Not Act “Lawfully”
State v. Dione Wendell Haywood, 2009 WI App 178
For Haywood: Robert E. Haney
Issue/Holding: In a battery-to-officer prosecution, it is no defense that the officer refused to leave the premises when the resident withdrew consent to enter, because acting “lawfully” is not an element:
¶11 The flaw in Haywood’s contention, however, is that a law-enforcement officer need not be acting “lawfully” for what he or she does to be done in the officer’s “official capacity.” Rather,
§ 940.23(1), Reckless Injury – “Utter Disregard for Human Life” – Insufficient Proof, Interplay of Self-Defense
State v. James D. Miller, 2009 WI App 111, PFR filed 8/3/09
Pro se
Issue/Holding: Miller incontrovertibly had some basis to fire a shotgun at his drunken, violent antagonist and even if not adequate to establish full self-defense was enough to defeat the reckless injury element of utter disregard for human life, thereby requiring entry of judgment of acquittal on remand, ¶¶31-44.
Lengthy clips from the court’s detailed analysis omitted,
Expectation of Privacy – Public Area (Courthouse Hallway), Property Left in
State v. Elliot B. Russ, Sr., 2009 WI App 68
For Russ: Barry S. Buckspan
Issue/Holding: No expectation of privacy protected papers left in courthouse hallway and subsequently seized and photocopied by court personnel:
¶12 Although Russ’s main brief on this appeal asserts that, as testified-to by Carlson, the affidavits were in a folder when Carlson saw them, the circuit court found that when Commissioner Sweet first saw them they “were spread out on a public bench” … .
§ 940.32(2), Stalking, Generally: “Three Distinct Classifications”
State v. Janet A. Conner, 2009 WI APP 143, PFR filed 9/28/09
For Conner: J. Steven House
Issue/Holding:
¶11 Wisconsin Stat. § 940.32 creates three distinct classifications of stalking offenses. See State v. Warbelton, 2009 WI 6, ¶24, 315 Wis. 2d 253, 759 N.W.2d 557. Subsections (2) and (2e) each set forth separate requirements for Class I felony stalking.
§ 940.32(2m)(b), Stalking – “Course of Conduct” Acts: Timing, Admissibility
State v. Janet A. Conner, 2009 WI APP 143, PFR filed 9/28/09
For Conner: J. Steven House
Issue/Holding:
¶19 We conclude that the seven year time restriction specified in Wis. Stat. § 940.32(2m)(b) requires that only the final act charged as part of a course of conduct occur within seven years of the previous conviction, and does not restrict by time the other acts used to establish the underlying course of conduct element of sub.