On Point blog, page 74 of 214
Rebuttal Witness – Test for “Bona Fide” Rebuttal
State v. Juan M. Sandoval, 2009 WI App 61, PFR filed 5/6/09
For Sandoval: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: The State need not disclose bona fide rebuttal evidence, the test for which turns on whether the evidence “only became necessary at rebuttal” (as opposed to whether it would have been admissible or useful in the State’s case-in-chief), ¶¶30-34.
¶33 We are convinced that the State satisfied the law of Wisconsin in this case.
Due Process – Defendant’s Right to Testify – Retraction of Waiver – Offer of Proof Required
State v. Ronnie Lee Winters, 2009 WI App 48, PFR filed 4/8/09
For Winters: Ralph Sczygelski
Issue/Holding: Where the defendant validly waived his right to testify but then, after the state had rested and released its rebuttal witnesses, sought to retract the waiver, his failure to make an offer of proof as to the substance of his proposed testimony, either at trial or on postconviction motion,
Due Process – Defendant’s Right to Testify – Exercise of Right: Knowing, Voluntary Waiver of Right Not to Testify
State v. Mark A. Jaramillo, 2009 WI App 39
For Jaramillo: Margaret A. Maroney, SPD, Madison Appellate
Issue: Whether the trial court must conduct a colloquy before a defendant testifies to determine whether waiver of the right not to testify is knowing and voluntary.
Holding:
¶16 We have previously noted that we do “not possess any supervisory authority which would permit [us] to promulgate rules of criminal practice and procedure.” State v.
Due Process – Notice of Charge – Sufficient to Allege Elements, Specific Acts Unnecessary
State v. Janet A. Conner, 2009 WI App 143, PFR filed 9/28/09
For Conner: J. Steven House
Issue/Holding: An information alleging the elements of stalking, § 940.32(2m)(b), but not the acts allegedly establishing the “course of conduct,” provided adequate notice of the charge; court rejecting argument that Connor deprived of notice of “time frame in which the crime allegedly occurred.”
State v.
Defenses – “Statutory Double Jeopardy” – Drug Offenses, § 961.45 – “Same Conduct” Test
State v. Julio C. Bautista, 2009 WI App 100, PFR filed 7/16/09
For Bautista: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: Section 961.45 bars successive drug prosecutions by dual sovereignties premised on the “same act” (or “conduct”), State v. Colleen E. Hansen, 2001 WI 53. Although broader than the Blockburger “elements-only” test, this “same-conduct” test does not bar state prosecution for conspiracy to deliver marijuana following federal conviction for delivering cocaine.
Forfeited Issue: Deferred Prosecution Agreement Argument
State v. Chase E. Kaczmarski, 2009 WI App 117
For Kaczmarski: Harold L. Harlowe, David M. Gorwitz
Issue/Holding:
¶7 Forfeiture is a rule of judicial administration, and whether we apply the rule is a matter addressed to our discretion. [3] See Ford Motor Co. v. Lyons, 137 Wis. 2d 397, 417, 405 N.W.2d 354 (Ct. App. 1987).We generally do not consider arguments not raised in the circuit court.
Forfeited Issue – Failure of Court Reporter to Take Down Tape as Played to Jury
State v. Garrett L. Huff, 2009 WI App 92, PFR filed 6/3/09
For Huff: Jeffrey W. Jensen
Issue/Holding:
¶14 As we have seen, the trial court did not require its court reporter to take down the tapes as they were being played. This was error. See State v. Ruiz-Velez, 2008 WI App 169, ___ Wis. 2d ___,
Assertion of Right to Counsel – Not Offense-Specific
State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz
Issue/Holding:
¶25 … If a suspect requests counsel at any time during the interview, he or she is not subject to further questioning until a lawyer has been made available or the suspect himself or herself reinitiates conversation. …
¶26 The Fifth Amendment/ Miranda right to counsel during custodial interrogations is not offense specific.
Audiovisual Recording, § 908.08(1) – Transcription by Court Reporter Required
State v. Pablo Ruiz-Velez, 2008 WI App 169
For Ruiz-Velez: Melnda A. Swartz, SPD, Milwaukee Appellate
Issue: Whether audiovisual recordings of statements made by alleged victims and admitted into evidence under § 908.08(1) must be transcribed by the official court reporter.
Holding:
¶4 Wisconsin Stat. Rule 885.42(4) provides: “At trial, videotape depositions and other testimony presented by videotape shall be reported.” As we have seen,
“Meaningful participation” in TPR by webcam
Waukesha Co. DHHS v. Teodoro E., 2008 WI App 16, District 2 (published)
Issue/Holding: A deported father’s participation in the TPR proceeding by a webcam system was “meaningful,” given that he could see and hear witnesses, be seen by the court, and communicate privately with counsel and with aid of an interpreter, ¶¶10-19.
State v. Lavelle W., 2005 WI App 266 (telephone hookup not functional equivalent of personal presence,