On Point blog, page 96 of 214
Plea Bargains – Breach: By Prosecutor, Recommending Lengthy Terms of Supervision – Non-Material Where Confinement Defendant’s Main Concern
State v. David C. Quarzenski, 2007 WI APP 212, PFR filed 9/21/07
For Quarzenski: Martin E. Kohler, Christopher M. Eippert
Issue: Whether counsel was ineffective for failing to object to the State’s sentencing recommendation where: under the plea bargain the State agreed to and in fact “capped” its recommendation on several counts to a total of “7 years in prison” but “additionally asked for an extensive period of extended supervision and consecutive long-term probation.”
Holding: The State did not materially and substantially breach the agreement,
Witness – Impeachment – Gang Affiliation of Witnesses – Irrelevant in Absence of Evidence Defendant Was Gang Member
State v. Thomas C. Burton, 2007 WI App 237
For Burton: Timothy A. Provis
Issue/Holding: Testimony by a “gang expert” as to the gang-affiliation of certain witnesses, in an effort to explain their motive to testify as they did, was irrelevant in the absence of any evidence that the defendant was himself a gang member:
¶14 Burton’s central argument on appeal is that Warmington’s testimony was squarely barred by State v.
Impeachment with Post-Miranda Silence – Generally: Due Process Analysis
State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.
Issue/Holding:
¶14 Although Cockrell describes his challenge to the prosecutor’s use of his post- Miranda silence as a violation of his Fifth Amendment right to remain silent, the substance of his argument is the due process analysis employed in Doyle v. Ohio,
Self-Incrimination – Impeachment with Post-Miranda Silence – Generally: Partial Exercise of Rights
State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.
Issue/Holding:
¶16 Building on footnote 11 in Doyle, courts have recognized situations in which it is not a violation of due process for the prosecutor to elicit on cross-examination the fact of the defendant’s post- Miranda silence for the purpose of impeaching the defendant’s testimony about his or her interactions with the police after the arrest.
Self-Incrimination – Impeachment with Post-Miranda Silence – Distinction re: Substantive Use
State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.
Issue/Holding:
¶31 … (A)s long as the prosecutor does not ask the jury to make a direct inference of guilt from the defendant’s post-arrest silence, asking the jury to draw inferences that impeach the defendant’s volunteered testimony on that subject does not violate due process, even though the inferences,
Expert Witness – Conclusion as to Ultimate Fact
State v. Louis H. LaCount, 2007 WI App 116, affirmed, 2008 WI 59, ¶20
For LaCount: T. Christopher Kelly
Issue/Holding:
¶19 Under Wis. Stat. § 907.04, “[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” See, e.g.,
Finality of Order – Trial Court’s Inherent Authority to Reconsider Non-Final Order
State v. Frederick W. Rushing, 2007 WI App 227, PFR filed 10/25/07
For Rushing: Randall E. Paulson, SPD, Milwaukee Appellate
Issue/Holding: Trial courts possess inherent authority to reconsider any non-final ruling prior to entry of final order or judgment, ¶13, citing State v. Bobby R. Williams, 2005 WI App 221, ¶17, 287 Wis. 2d 748, 706 N.W.2d 355.
The trial court reconsidered its own prior sua sponte vacatur of a guilty plea.
“Alford” Plea – Challenge to Trial Court’s Refusal to Accept
State v. William F. Williams, 2000 WI App 123, 237 Wis.2d 591, 614 N.W.2d 11
For Williams: Steven P. Weiss, SPD, Madison Appellate
Issue: Whether the trial court’s express policy of never accepting an “Alford” plea worked an erroneous refusal to accept such a plea.
Holding:
¶8 Even if we were to determine that the trial court erred in rejecting the tendered Alford plea,
Hearsay – Statement Against Penal Interest, § 908.045(4) – Non-Self-Inculpatory Statement
State v. Patrick Jackson, 2007 WI App 145, PFR filed 6/6/07
For Jackson: Marcella De Peters
Issue/Holding:
¶20 Although finding that Natisha Watkins was unavailable as a witness because it permitted her to assert her Fifth Amendment right, the trial court excluded what Natisha Watkins told Papka because it determined that her statement that Carlos Williams and not Jackson handled the gun was not against her penal interest.
Authentication & Identification, § 909.01: Chain of Custody
State v. Walter William McCoy, 2007 WI App 15
For McCoy: Andrea Taylor Cornwall
Issue/Holding:
¶18 … We start by acknowledging that the chain of evidence in this case is not perfect. There are substantial time gaps as pointed out by McCoy. Nonetheless, the chain of custody evidence was sufficient to support the trial court’s conclusion that it was admissible. The standard for the admission of exhibits into evidence is that there must be a showing that the physical exhibit being offered is in substantially the same condition as when the crime was committed.” Moore,