On Point blog, page 8 of 17
Double Jeopardy – Multiplicity, Generally
State v. Alvin M. Moore, 2006 WI App 61, PFR filed 3/21/06
For Moore: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding:
¶15 Charges are multiplicitous if they charge a single criminal offense in more than one count. State v. Grayson, 172 Wis. 2d 156, 159, 493 N.W.2d 23 (1992). Claims of multiplicity are analyzed using a two-prong test that requires examination of: (1) “whether the charged offenses are identical in law and fact;” and (2) if they are not,
Double Jeopardy – Prosecutorial Misconduct – Provoking Mistrial, Generally
State v. Jose M. Jaimes, 2006 WI App 93, PFR filed 5/11/06
For Jaimes: Joseph L. Sommers
Issue/Holding: Retrial is ordinarily not barred when the defendant successfully requests mistrial, except where prosecutorial overreaching, comprised of the following elements, has been shown: the prosecutor’s has “ a culpable state of mind in the nature of an awareness that his activity would be prejudicial to the defendant”;
Double Jeopardy – Prosecutorial Misconduct – Provoking Mistrial – Ascribing to Prosecutor Misconduct by State’s Witness<
State v. Jose M. Jaimes, 2006 WI App 93, PFR filed 5/11/06
For Jaimes: Joseph L. Sommers
Issue/Holding:
¶11 Next, Jaimes argues that the prosecutor’s responsibility to avoid provoking a mistrial must extend to the law enforcement officers who testify at trial …. In effect, Jaimes argues that the officer’s testimony must be imputed to the prosecutor, and when an officer testifies about explicitly excluded evidence,
Double Jeopardy – Bar on Retrial: Mistrial over Defense Objection – Counsel Held in Contempt (Itself Later Reversed on Appeal)
State v. Otis G. Mattox, 2006 WI App 110
For Mattox: Scott D. Obernberger
Issue: Whether grant of mistrial over objection, after defense counsel was held in contempt for supposedly violating a court order with respect to questioning a witness, was manifestly necessary so as to permit retrial.
Holding:
¶19 As noted, the chief concerns of the trial court in continuing the trial were the problems occasioned by Schnake being found in contempt,
Waiver – Closing Argument: Failure to Move for Mistrial
State v. Xavier J. Rockette (II), 2006 WI App 103, PFR filed 6/29/06 ( prior unrelated appeal involving same defendant, different case: 2005 WI App 205)
For Rockette: Timothy A. Provis
Issue/Holding: Failure to move for mistrial waives objection to closing argument, ¶28, citing State v. Dale H. Davidson, 2000 WI 91, ¶86, 236 Wis.
Due Process – Exculpatory Evidence, Failure to Disclose – Impeachment: Not Material, Where Cumulative
State v. Xavier J. Rockette (II), 2006 WI App 103, PFR filed 6/29/06 (prior unrelated appeal involving same defendant, different case: 2005 WI App 205)
For Rockette: Timothy A. Provis
Issue/Holding: Failure to disclose evidence that a prosecution witness had falsely implicated Rockette in another homicide did not violate Brady, because it would not have had an impact on the outcome of the trial:
¶41 Evidence of impeachment is material if the witness whose testimony is attacked “supplied the only evidence linking the defendant(s) to the crime,” United States v.
Due Process – Right to Present Defense – Prosecution Witness’s Attempts to Curry Favor in Other Cases – Cumulative to Credibility
State v. Xavier J. Rockette (II), 2006 WI App 103, PFR filed 6/29/06 ( prior unrelated appeal involving same defendant, different case: 2005 WI App 205)
For Rockette: Timothy A. Provis
Issue/Holding: Excluding evidence that in other, unrelated instances a witness had lied to the police in an attempt to curry favor in his own criminal cases did violate Rockette’s right to present a defense,
Due Process – Presumptions, Generally
State v. Eric Benjamin Gardner, 2006 WI App 92
For Gardner: Michael K. Gould, SPD, Milwaukee Appellate
Issue/Holding:
¶9 In addressing this issue, it is first necessary to define what a presumption is and when a presumption denies a criminal defendant due process. A presumption allows a “trier of fact to determine the existence of an element of the crime–that is, an ‘ultimate’ or ‘elemental’ fact–from the existence of one or more ‘evidentiary’ or ‘basic’ facts.” Ulster County Court v.
Equal Protection – Rational Basis Test – Punishment Classification Scheme
State v. Gerald L. Lynch, Jr., 2006 WI App 231, PFR filed 11/6/06
For Lynch: David R. Karpe
Issue: Whether a higher level of scrutiny applies to an equal protection challenge to a prison early release program which categorically withholds eligibility from certain types of crimes.
Holding:
¶13 The State, on the other hand, argues that we should employ the lower level of scrutiny,
Equal Protection – Statutory Ineligibility for Earned Release Program
State v. Gerald L. Lynch, Jr., 2006 WI App 231, PFR filed 11/6/06
For Lynch: David R. Karpe
Issue: Whether statutory ineligibility for Earned Release, § 973.01(3g), for homicide by intoxicated use violates equal protection given eligibility for driving while intoxicated but not causing death or great bodily harm.
Holding:
¶18 Applying this standard, we conclude there is a rational basis for not allowing persons convicted of crimes under Wis.