On Point blog, page 70 of 214
§ 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.
Expectation of Privacy – Generally
State v. Elliot B. Russ, Sr., 2009 WI App 68
For Russ: Barry S. Buckspan
Issue/Holding:
¶11 The first issue turns on whether Russ had a reasonable expectation of privacy in the affidavits that he left on the bench. See Roberts, 196 Wis. 2d at 453, 538 N.W.2d at 828 (“[B]efore a defendant can invoke the protections of the Fourth Amendment,
Exigency – Destruction of Evidence (Drugs) – Entry of Residence – Following Controlled Buy
State v. Antonio K. Phillips, 2009 WI App 179, PFR filed 11/25/09
For Phillips: Michael J. Backes
Issue/Holding: Warrantless entry of residence, following controlled buy within it, was justified by the threat of destruction of evidence, given that, “after seeing the police outside the residence, Phillips retreated into the residence and shut the door after the police ordered him to stop,” ¶11. State v.
Exigency – “Protective Sweep” as Incident of Destruction of Evidence
State v. Kevin Raphael Lee, 2009 WI App 96, PFR filed 7/1/09
For Lee: Robert E. Haney
Issue/Holding: Police investigating complaint of drug dealing were entitled to enter apartment and conduct “protective sweep” when they saw, through the open front door, clear evidence of drugs:
¶13 The officers who presented themselves at Lee’s front door were investigating a complaint of drug activity at Lee’s address.
Attempted Theft from Person, § 943.20(3)(e) – Sufficiency of Evidence
State v. Cleveland R. Tidwell, 2009 WI App 153, PFR filed 10/9/09
For Cleveland: Jeremy C. Perri, SPD, Milwaukee Appellate
Issue/Holding: Evidence held sufficient to sustain conviction for attempted theft from person, where Tidwell demanded money from a restaurant clerk, hit his fist on cash register and fax machine next to cash register, and tried to grab and take the fax machine:
¶10 In the case at bar,
Double Jeopardy – Multiplicity: Bail Jumping – Single Bond, Same Condition but Different Cases
State v. Dana Eaglefeathers, 2009 WI App 2, PFR filed 1/9/09
For Eaglefeathers: Patricia A. Fitzgerald
Issue/Holding: Violation of the same condition in a single bond applicable to two different cases (failure to appear at both preliminary hearings scheduled for the same time and court) supports multiple bail jumping charges:
¶8 The parties do not dispute that the offenses charged against Eaglefeathers are identical in law;
Disorderly Conduct, § 947.01 – Conviction as “Crime of Domestic Violence” Disqualifying Gun Possession
Joseph E. Koll, Jr v. Dept of Justice, 2009 WI App 74, PFR filed 4/29/09
For Koll: Alexander L. Ullenberg
Issue: Whether Koll’s conviction of so-called “non-domestic” disorderly conduct was for a misdemeanor crime of domestic violence as defined 18 U.S.C. §921(a)(33)(A), so as to preclude him from obtaining a handgun.
Holding: The federal Gun Control Act bars gun possession to anyone convicted of a “misdemeanor crime of domestic violence,” 18 U.S.C.