On Point blog, page 78 of 214
Counsel – Ineffective Assistance – Deficient Performance – Failure to Adduce Expert Testimony on False Confessions
State v. Jason K. Van Buren, 2008 WI App 26; for Van Buren: Waring R. Fincke
Issue: Whether trial counsel’s failure to adduce expert testimony on false confessions was deficient.
Holding:
¶18 Here, we do not address the prejudice prong of Strickland because we conclude that Van Buren’s counsel was not deficient. A finding of deficient performance “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland,
Counsel – Right to, Public Expense – Generally
State v. Alvernest Floyd Kennedy, 2008 WI App 186
Pro se
Issue/Holding:
¶10 There are two avenues by which an indigent criminal defendant will be afforded counsel at no expense. The first is through the legislatively created Office of the State Public Defender. The legislature created Wis. Stat. ch. 977 of the Wisconsin Statutes establishing the Office of the State Public Defender “to deal with the appointment of counsel for indigent defendants.” Pirk,
Retained Counsel, Choice of, Generally
State v. Todd E. Peterson, 2008 WI App 140
For Peterson: Ralph Sczygelski
Issue/Holding:
¶7 … In United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), the Supreme Court explained that the right to counsel derived from the Sixth Amendment includes “the right of a defendant who does not require appointed counsel to choose who will represent him.” Id. at 144.
Right to Retained Postconviction Counsel of Choice – Based on 6th Amendment
State v. Todd E. Peterson, 2008 WI App 140
For Peterson: Ralph Sczygelski
Issue/Holding: A defendant has a 6th amendment-based right to retained postconviction counsel of choice:
¶9 The State correctly counters that Miller and Gonzalez-Lopez involved the right to counsel of choice at trial. Here, Peterson was postconviction, at a Machner proceeding. …
¶10 Martinez and Tamalini provide no guidance on the question presented.
OWI – Sufficiency of Evidence: “Operated” Vehicle on “Highway”
State v. Michael G. Mertes, 2008 WI App 179, PFR filed 12/17/08
For Mertes: Andrea Taylor Cornwall, SPD, Milwaukee Appellate
Issue: Whether finding the sleeping occupant of a vehicle parked at a gas station, with engine off but key in the ignition, along with other factors sufficiently proved the OWI element of “operating.”
Holding:
¶13 Wisconsin Stat. § 346.63(3)(b) defines “operate” as “the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.” Mertes’ argument focuses almost exclusively on the definition of “operation” under Wis.
OWI — Gated Community Roadway, Open to Public Use, Support for Drunk Driving under § 346.61
State v. Thomas P. Tecza, 2008 WI App 79, PFR filed 5/22/08
For Tecza: Timothy P. Swatek
Issue: Whether a roadway within a gated community entry to which is guarded by a security station is “held out to the public for use of their motor vehicles” so as to support drunk driving conviction within § 346.61.
Holding:
¶18 … We read Phillips as inquiring into whether the premises were available for use to the public or “to a defined limited portion of the citizenry.”Richling,
Enhancer – Proof: Timing (“Post-Trial”)
State v. Shane P. Kashney, 2008 WI App 164
For Kashney: Paul G. LaZotte, SPD, Madison Appellate
Issue/Holding: While State v. Patrick A. Saunders, 2002 WI 107 limits proof of a repeater enhancement to the “post-trial” setting, that limitation is satisfied if the State submits the proof after verdict (and before the court has pronounced judgment).
¶1 In State v.
Due Process – Identification Procedure – Showup ID: Probable Cause Specific to Purpose of ID Unncessary
State v. Jonathan W. Nawrocki, 2008 WI App 23
For Nawrocki: Scott D. Obernberger
Issue/Holding:
¶2 The issue presented in this case is whether a showup identification is necessary, thus meeting the first test of admissibility under Dubose, when probable cause exists to justify an arrest of a suspect, but it does not exist on the particular offense under investigation. [3] We conclude that whenever probable cause exists to justify detention of a suspect,
Due Process – Identifcation Procedure – In-Court ID as Untainted by Impermissible Showup
State v. Jonathan W. Nawrocki, 2008 WI App 23
For Nawrocki: Scott D. Obernberger
Issue/Holding:
¶29 Having concluded that the showup identifications of Nawrocki were not necessary and therefore should have been suppressed, we next must address whether Albert’s and/or Gerhardt’s in-court identifications of Nawrocki were based on an independent source that was untainted by the impermissible showup identification. “[T]he exclusion of evidence of the out-of-court identifications does not deprive the prosecutor of reliable evidence of guilt.
Due Process – Restraints on Defendant in Courtroom – Sua Sponte Duty of Court to Investigate
State v. Kevin M. Champlain, 2008 WI App 5, (AG’s) PFR filed 1/4/08
For Champlain: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: Once it became aware that the jail administrator was requiring that the defendant wear an armband taser device during the jury trial, the court, “the trial court had an affirmative, sua sponte duty to inquire into the necessity for the device,” ¶32. “The judge alone controls the courtroom and alone has the authority and the duty to make a restraint decision,” ¶34.