On Point blog, page 1 of 12

Expectation of Privacy – Public Area (Courthouse Hallway), Property Left in

State v. Elliot B. Russ, Sr.2009 WI App 68
For Russ: Barry S. Buckspan

Issue/Holding: No expectation of privacy protected papers left in courthouse hallway and subsequently seized and photocopied by court personnel:

¶12   Although Russ’s main brief on this appeal asserts that, as testified-to by Carlson, the affidavits were in a folder when Carlson saw them, the circuit court found that when Commissioner Sweet first saw them they “were spread out on a public bench” … .

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Attenuation of Taint – Consent Following Illegal Entry

State v. Patrick E. Richter, 2000 WI 58, 235 Wis. 2d 524, 612 N.W.2d 29, reversing 224 Wis. 2d 814, 592 N.W.2d 310 (Ct. App. 1999)
For Richter: Susan Alesia, SPD, Madison Appellate

Issue: Whether consent to search, immediately following warrantless entry of the home, sufficiently attentuated any taint from that entry.

Holding: Consent was freely given and therefore sufficiently attenuated from the entry to purge any taint of illegality.

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Cross-examination – in camera inspection of mental health records.

State v. Peter Ballos, 230 Wis.2d 495, 602 N.W.2d 117 (Ct. App. 1999).

For Ballos: Robert N. Myeroff.

Issue: Whether the trial court should have ordered production of the state’s witness’s mental health records, for in camera inspection, upon showing that the witness had been hospitalized for depression and was obsessed with bomb-building, and where the theory of defense was that the witness rather than defendant committed the crime.

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Defendant’s Presence — jury selection.

State v. Larry D. Harris, 229 Wis.2d 832, 601 N.W.2d 682 (Ct. App. 1999).
For Harris: William S. Coleman, SPD, Milwaukee Appellate.
Issue: Whether defendant’s rights to presence and counsel were violated by their absence from at least part of voir dire.
Holding: Defendant has both a nonwaivable statutory right to presence, and also a constitutional right to assistance of counsel, at jury selection.
Go to Brief

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Miranda Waiver – Inaccurate Advice Re: Timing of Appointment of Counsel

State v. Frederick G. Jackson, 229 Wis. 2d 328, 600 N.W.2d 39 (Ct. App. 1999), affirmed on habeas review, Frederick G. Jackson v. Frank, 02-1979, 11/6/03
For Jackson: Allan D. Krezminski.

Issue/Holding: During custodial interrogation, Jackson asked for an attorney, and the detective gave erroneous advice, namely that Jackson could have an attorney once charges “were established” (erroneous, of course, because Jackson had a right to pre-charging consultation).

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“Edwards” violation – voluntariness

State v. Jonathan L. Franklin, 228 Wis.2d 408, 596 N.W.2d 855 (Ct. App. 1999)
For Franklin: Archie E. Simonson

Holding: Statement taken in violation of right to counsel rule, Edwards v. Arizona, 451 U.S. 477 (1981) is not, for that reason alone, involuntary and is therefore admissible for impeachment purposes.

The court doesn’t mention it, but this decision resolves a question held open in State v.

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Appeal Procedure: Filing in county of origin where judge from different county assigned

State v. Clyde B. Williams, 230 Wis.2d 50, 601 N.W.2d 838 (Ct. App. 1999)
For Williams: Michael E. Nieskes

Issue: Whether papers must be filed in the county of origin after a successor judge from another county is assigned to the case

Holding: “In this appeal we conclude that when a judge from a different county is assigned to a case in response to a substitution request,

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Appellate Procedure: Traffic Cases

City of Sheboygan v. Laura I. Flores, 229 Wis. 2d 242, 598 N.W.2d 307 (Ct. App. 1999)

In a traffic regulation case, the docket entries – not any judgment or order – reflect the final determination and trigger the notice of appeal deadline.

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Cross-appeal on interlocutory appeal

Fedders v. American Family Mut. Ins. Co., 230 Wis.2d 577, 601 N.W.2d 861 (Ct. App. 1999)

Issue: Whether a party may cross-appeal of right any interlocutory order after leave to appeal has been granted.

Holding: “(W)e hold that once leave to appeal has been granted, any other interlocutory order is appealable only by leave of this court. We dismiss the notices of cross-appeal filed in this appeal.”

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Sentence credit – DIS confinement

State v. Timothy L. Olson, 226 Wis.2d 457, 595 N.W.2d 460 (Ct. App. 1999)
For Olson: Steven P. Weiss, SPD, Madison Appellate

Holding:

Timothy L. Olson appeals from an order denying a postconviction motion for relief.  Olson seeks a 256-day sentence credit for the time he served in the Division of Intensive Sanctions (DIS) program before his probation was revoked and he was given a five-year prison sentence.  

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