On Point blog, page 1 of 18
§ 943.10, Burglary – Sufficiency of Evidence – Owner’s Nonconsent
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:
¶37 Owner nonconsent, like other elements of criminal offenses, may be proved by circumstantial evidence. See Bohachef v. State, 50 Wis. 2d 694, 700-01, 185 N.W.2d 339 (1971). The test on review is whether the evidence presented was sufficient to prove guilt beyond a reasonable doubt,
“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 – Recent Perception, § 908.045(2)
State v. Patricia A. Weed, 2003 WI 85, affirming unpublished opinion of court of appeals
For Weed: T. Christopher Kelly
Issue/Holding:
¶16. Weed argues that the circuit court erroneously exercised its discretion in admitting Michael’s statement regarding unloading the .357 because the statement did not meet the statutory requirements for admissibility under Wis. Stat. § 908.045(2). Weed principally argues that Michael’s statement was inadmissible under the exception due to the lack of a proper foundation;
Counsel – Ineffective Assistance – Deficient Performance – Investigation – Strategy Determined At Time, Not Through Hindsight
State v. Robert Jamont Wright, 2003 WI App 252
For Wright: Ann Auberry
Issue/Holding:
¶35. Wright’s appellate argument rests largely on Van Rybroek’s testimony at the Machner hearing, which documents the unreliability of eyewitness testimony. However, as the trial court aptly observed, trial counsel’s decision to forego an expert was made prior to Lomack surfacing as a potential witness and prior to the trial court’s ruling that Van Rybroek’s testimony was admissible under those changed circumstances.
OWI – Proof of Priors – Certified DOT Driving Transcript
State v. Kevin J. Van Riper, 2003 WI App 237
For Van Riper: Anthony L. O’Malley
Issue/Holding:
¶13. Thus, the cumulative effect of Wideman and Spaeth is as follows: (1) the proof requirements of Wis. Stat. § 973.12(1), the repeater statute in the criminal code, do not apply in OWI prosecutions (Wideman); and (2) a DOT teletype is competent proof of a defendant’s prior convictions (Spaeth)
.…
¶16.
Particular Examples of Misconduct, § 904.04(2) — Prior Sexual Assaults
State v. William A. Silva, 2003 WI App 191, PFR filed 9/4/03
For Silva: Martin E. Kohler, Brian Kinstler, Donald E. Chewning
Issue/Holding: Prior sexual assaults were admissible at Silva’s trial for 1st-degree sexual assault of his 6-year old niece: Silva’s 13-year old niece; Silva’s girlfriend’s 13-year old daughter; and Silva’s 9-year old daughter. ¶¶27-28.
Cross-examination — Bias — Pending Charges
State v. Jon P. Barreau, 2002 WI App 198, PFR filed 8/12/02
For Barreau: Glenn C. Reynolds
Issue/Holding A witness’s pending criminal charges are relevant to bias, even absent promises of leniency. ¶55. In this instance, the trial court prohibited cross-examination about whether the witness was receiving benefits from the state for his testimony, but only after the witness testified outside the jury’s presence that there were none.
Sentencing Review – Factors – Articulation by Court
State v. Nathan T. Hall, 2002 WI App 108
For Hall: Howard B. Eisenberg, Dean, Marquette Law School
Issue/Holding: Because the trial court failed to explain its reasoning, its sentence was an erroneous exercise of discretion. In particular, the trial court exceeded the PSI recommendation (107 years) by approximately 200 years, without explaining either the necessity for sentences so long “that Hall will never live long enough to serve them,”
Witness – Rebuttal
State v. Richard N. Konkol, 2002 WI App 174
For Konkol: Brian Hough
Issue/Holding: The proper test for admissibility of rebuttal evidence isn’t whether it could have been admitted in, or would have been useful to, the state’s case-in-chief, but whether it meets new facts put in by the defendant. ¶¶18-19.
¶18 Thus, the only other basis for barring the witness would be that she was not a bona fide rebuttal witness.
Custody — Handcuffed in Squad
State v. Zan Morgan, 2002 WI App 124
For Morgan: Timothy A. Provis
Issue: Whether Morgan was in custody, for Miranda purposes, after being handcuffed and placed in the back of a squad car.
Holding: Custody is determined under “the totality of the circumstances, including such factors as: the defendant’s freedom to leave; the purpose, place, and length of the interrogation; and the degree of restraint.”