On Point: Published 2006

State v. Jeffrey Lorenzo Searcy, 2006 WI App 8
For Searcy: Joseph L. Sommers

Issue/Holding:

¶48 Here, Adams’ statements were properly admitted under the excited utterance hearsay exception. Adams spontaneously made the statements, without police prompting, under the stress of watching her cousin being taken into custody at gunpoint. It was only one to two minutes after Searcy’s arrest that Adams emerged from the crowd that had gathered to witness the arrest and yelled,

State v. Reinier A. Ravesteijn, 2006 WI App 250
For Ravesteijn: Rudolph L. Oldeschulte

Issue/Holding: Although kidnapping for ransom, § 940.31(2)(a), is susceptible to possible mitigation of penalty from 60 to 40 years if the victim is released without permanent physical injury, testimony from counsel at a postconviction hearing that the defendant was well aware of this possibility when he pleaded guilty dooms his claim that he was unaware of the potential penalty when he entered his guilty plea,

State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate

Issue/Holding: Where the defendant’s brother testified that the non-testifying complainant had recanted, the prosecution could impeach the brother with the possibility that the complainant was motivated by fear due to the brother’s gang affiliation, ¶31: “A witness’s motive (whether testifying ‘live’ or by admission of his or her out-of-court assertions) is never collateral, 

State v. Justin Yang, 2006 WI App 48
For Olson: John J. Grau

Issue/Holding:

¶11      Inquiry into a witness’s bias is always material and relevant. State v. Williamson, 84 Wis. 2d 370, 383, 267 N.W.2d 337, 343 (1978) (bias and improper motive of witness are never collateral). John Henry Wigmore has characterized cross-examination as “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” 5 Wigmore,

State v. Nicole Schutte, 2006 WI App 135, PFR filed 7/21/06
For Schutte: Donald T. Lang, SPD, Madison Appellate

Issue/Holding1: Evidence of the driver’s marijuana use just before the accident resulting in the charged homicide by negligent use of vehicle was relevant and admissible:

¶48      Although the toxicology expert could not tie the level of THC detected in Schutte’s blood to a specific level of impairment,

State v. Keith S. Krause, 2006 WI App 43
For Krause: Roger G. Merry

Issue/Holding: Because collateral attack on a prior conviction used as a sentencing enhancer is limited to denial of counsel, and because the right to counsel does not attach to a civil proceeding, a refusal revocation is not subject to collateral attack on its use as an OWI enhancer:

¶12      In an enhanced-penalty situation,

State v. Jonathan Bell, 2006 WI App 30
For Bell: Leonard D. Kachinsky

Issue: Whether intervention of the local prosecutor to obtain a second DOC evaluation, which resulted in a referral for SVP commitment after the first DOC evaluation determined insufficient likelihood of reoffending, violated ch. 980 or due process.

Holding:

¶11      Our supreme court defined the scope of the district attorney’s authority in Byers.

State ex rel. Richard A. Ford (II) v. Holm, 2006 WI App 176, PFR filed 9/11/06; on appeal following remand in 2004 WI App 22 (“Ford I”)
For Ford: James R. Troupis
For Amicus: Joseph N. Ehmann, SPD, Madison Appellate

Issue/Holding: A client who has strategically foregone a potentially meritorious postconviction challenge is not entitled to the option of a “partial” no-merit report discussing remaining aspects of the case:

¶12 We conclude,

State v. Thomas A. Mikulance, 2006 WI App 69
Pro se

Issue/Holding: A “narrow” exception to the serial litigation bar of § 974.06(4) and State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994) is established by State v. Flowers, 221 Wis. 2d 20, 27, 586 N.W.2d 175 (Ct. App. 1998), which “applies only where the defendant files a motion alleging that the State has failed to prove the prior conviction necessary to sustain the habitual criminal status (by proof or by admission) or when the penalty imposed is longer than permitted by law for a repeater,” ¶¶1,

State v. Ricky J. Fortier, 2006 WI App 11

Issue/Holding: Fortier’s failure to respond to no merit report does not, under the circumstances, work serial litigation bar to subsequent, arguably meritorious challenge to sentence:

¶15      Fortier contends that he should not be precluded from raising the issue of a sentence illegally raised upon resentencing, even though he failed to raise it in a response to the no-merit report at the time of the original appeal.