On Point blog, page 4 of 18
Judicial Estoppel Bar to Argument — Complete Adoption of Party’s Position Required
State v. Edward W. Johnson, Jr., 2002 WI App 166
For Johnson: Robert T. Ruth
Issue/Holding: Judicial estoppel requires that the party’s position be completely adopted. (Johnson therefore not estopped from challenging restitution amount he agreed to below because he also asked for probation but was given some jail time.) ¶24.
Judicial Estoppel Bar to Argument — Acceptance of Curative Instruction Bars Appellate Challenge to Its Efficacy
State v. Jonathan J. English-Lancaster, 2002 WI App 74, PFR filed 3/22/02
For English-Lancaster: Steven D. Phillips, SPD, Madison Appellate
Issue: Whether defendant is judicially estopped from appellate challenge to the efficacy of a curative instruction, where he: requested such an instruction, expressed approval of it when it was given, and failed to move for mistrial.
Holding:
¶22. This is classic judicial estoppel.
Appellate Procedure: Challenge to Judicial Substitution Refusal – Failure to Seek Chief Judge’s Review
Barbara R.K. v. James G., 2002 WI App 47
Issue: Whether review of a denied request for substitution of judge is waived by failure to seek review of the denial by the local chief judge.
Holding:
¶9. … The statute then provides: ‘If the judge named in the substitution request finds that the request was not timely and in proper form, that determination may be reviewed by the chief judge of the judicial administrative district …
Review of Waived Issue: Plain Error – Polygraph Evidence
State v. Ronald J. Frank, 2002 WI App 31, PFR filed 1/2/02
For Frank: Jane K. Smith
Issue: Whether testimonial references to an accepted offer to take a polygraph amounted to plain error.
Holding: Plain error, § 901.03(4), requires “obvious” error, and is reserved for likely violations of basic constitutional right: “Frank identified no basic constitutional right implicated, and he concedes, ‘[t]here is no evidence in the record as to the time separation,
Standing Objection Insufficient to Preserve “Haseltine” Error
State v. Carlos R. Delgado, 2002 WI App 38
For Delgado: Richard D. Martin, Diana M. Felsmann, SPD, Milwaukee Appellate
Issue/Holding:
¶11. Under the facts and circumstances of this case, it was incumbent upon defense counsel to police Ortiz’s testimony. This area of the law — what a therapist can and cannot testify to — is complicated. As a result, we hold that when an expert witness is permitted to testify in a sexual assault case as to common characteristics of sexual assault victims,
Appellate Procedure – Standard of Review: Implied Consent Statute
State v. Darin W. Baratka, 2002 WI App 288, PFR filed 10/20/02
For Baratka: Michael C. Witt
Issue/Holding:
¶7. Application of the implied consent statute to an undisputed set of facts is a question of law that we review independently. Similarly, reconciling constitutional considerations of due process and equal protection with the requirements of the implied consent statute involve questions of law, which we also review independently.
Restitution – Special Damages – “Loss of Use” – Rental Fees
State v. Joseph A. Kayon, 2002 WI App 178
For Kayon: Ronald J. Sonderhouse
Issue/Holding: Both the replacement cost of a television stolen by the defendant, and rental fees of a television while the case was pending, may be recovered in restitution. The rental fees represent “loss of use” damage that could be claimed in a civil action and therefore qualify as a special damage.
(T)he standard to be applied to such recovery is that of reasonableness under all the circumstances of the particular case.
Restitution – Special Damages – Time Spent by Victim’s Salaried Employee Investigating Offense
State v. William A. Rouse, 2002 WI App 107, PFR filed 5/8/02
For Rouse: Morris D. Berman
Issue/Holding: Time spent by a bank’s salaried employees investigating the crime (forgery) is subject to restitution because,
while the bank’s employees were investigating Rouse’s forgeries, they were prevented from doing other work for the bank, and thus the bank lost all value of their services during that time.
Review — Resentencing — Correction of Unlawful Sentence — Double Jeopardy — Increase in Original Sentence
State v. Timothy J. Helm, 2002 WI App 154, PFR filed 6/11/02
Issue: Whether resentencing, to correct an illegal sentence, violated double jeopardy because it resulted in an increase in the original sentence.
Holding: On sentence after revocation, the trial court reimposed probation on one of the counts; this was an unauthorized disposition which the trial court properly corrected by subsequently resentencing to an active term of imprisonment on that count.
Re-Sentencing — Multiple Counts, Challenge to One Count
State v. Jeffrey R. Groth, 2002 WI App 299, PFR filed 12/11/02
For Groth: Peter Koneazny, Randall E. Paulson, SPD, Milwaukee Appellate
Issue/Holding: ¶39 n. 1:
Groth was sentenced on all three counts at the same hearing and, therefore, the court’s determination of his sentence on any of the counts may well have affected its determination and structuring of his sentences on all three.