On Point: Published 2005

State v. Frederick W. Prager, 2005 WI App 95
For Prager: Daniel P. Fay

Issue: Whether, six days after original sentencing and imposition of probation, the State’s proffered new factor (that defendant had quitclaimed the jointly owned farm to his wife) supported a modification to an active prison term.

Holding: Although the term of probation was premised in part on the economic hardship that defendant’s wife would suffer if he were sentenced to prison (¶¶4,

State v. John Doe, 2005 WI App 68
For John Doe: Amelia L. Bizzaro (the court file has been ordered sealed, and the caption amended “to shield the defendant’s identity”)

Issue/Holding:

¶6. Thus, sentence modification on the basis of a new factor is a two-step process. Id. First, the defendant must demonstrate, by clear and convincing evidence, that there is a new factor justifying a motion for sentence modification. 

State v. James L. Montroy, 2005  WI App 230
For Montroy: Jay E. Heit; Stephanie L. Finn

Issue/Holding: Wisconsin discretionary guideline regime is not governed by the holdings of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and United States v. Booker, 125 S. Ct. 738 (2005), ¶¶20-24.

State v. James L. Montroy, 2005  WI App 230
For Montroy: Jay E. Heit; Stephanie L. Finn

Issue/Holding1: Though information before the sentencing court was indisputably inaccurate, the court took remedial action by ordering that this information be stricken, and thus Montroy can’t satisfy his burden of showing actual reliance on inaccurate information. ¶¶9-11. (State v. Anderson, 222 Wis. 2d 403,

State v. Ryan E. Baker, 2005 WI App 45, PFR filed 3/17/05
For Baker: William E. Schmaal, SPD, Madison Appellate

Issue/Holding: The plain text of § 969.02(6) mandates that bail money be used to satisfy court costs, with no room for discretionary return to the depositor rather than payment of costs, ¶¶7-9.

This is a misdemeanor, but the relevant felony statute, § 969.03(4),

State v. Harry L. Seymer, 2005 WI App 93
For Seymer: Andrea T. Cornwall, SPD, Milwaukee Appellate

Issue/Holding: Where the (pro se) sexual assault defendant’s attempt to cross-examine the complainant and principal witness was abruptly terminated by the trial court, purportedly because of the defendant’s “mocking tone” and “derisive behavior”; but where the record did not in any respect support these “subjective impressions,” “the underpinnings of the trial court’s decision to terminate cross-examination [are] unavailing,

State v. Mahlik D. Ellington, 2005 WI App 243
For Ellington: Andrea Taylor Cornwall

Issue/Holding1: The confrontation clause doesn’t prohibit a witness from reading to the jury admissible medical records:

¶13      First, as we have seen, the certified medical records were received by the trial court without objection. Certainly, the jurors could have read the pertinent excerpts, and, also, the prosecutor or defense counsel could have read to the jury excerpts from those records.

State v. Boon Savanh, 2005 WI App 245
For Savanh: Timothy A. Provis

Issue/Holding1: Statement of coconspirator during drug transaction, conveyed to jury via police informant buying drugs as part of controlled buy, not “testimonial”:

¶25      We do not think an objective witness would reasonably believe that Vongrasamy would have thought his informal telephone conversation with his roommate would be available for use at a later trial.

State v. Donavin Hemphill, 2005 WI App 248
N.B. The holding quoted below was overruled, in State v. Mark D. Jensen, 2007 WI 26, ¶24n. 8. In other words, “a spontaneous statement to a police officer” is not, as a matter of law, non-testimonial.
For Hemphill: Jeffrey Jensen

Issue/Holding: An out-of-court statement by a witness to police (responding to a report of “trouble” involving a “subject with a gun”) which pointed out the defendant (“Those are the ones.

State v. Kevin D. James, 2005 WI App 188
For James: Terry W. Rose

Issue/Holding: The mere fact that § 908.08 imposes a mandatory protocol (videotape admitted into evidence first; child called to testify afterward) violates neither confrontation, ¶¶10-14, nor separation-of-powers, ¶¶15-25, doctrines.This statutory procedure allows the State to introduce a child’s videotaped statement, with the child available for questioning at the defendant’s request.