On Point: C. Unpublished Opinions

State v. Ross Timothy Litke, 2013AP1606-CR, 3/11/14, District 1 (1-judge opinion, ineligible for publication); case activity

This was a potentially interesting Daubert case.  The police stopped the car Litke was driving because a tail light was out.  The officer noticed Litke’s bloodshot eyes and asked if he had been drinking.  “Yes, a few beers,” Litke replied.  The officer thus conducted 3 field sobriety tests:  the Horizontal Gaze Nystagmus test (which Litke flunked),

John M.S. v. Marcy J.S., 2013AP2644-FT, District 2, 3/12/14; court of appeals decision (1-judge; ineligible for publication); case activity

Father’s petition under § 48.13(4) was insufficient because it fails to provide reliable and credible information and contain facts alleging that (1) the child “is in need of protection or services which can be ordered by the court” and (2) the parent “is unable or needs assistance to care for or provide necessary special treatment or care” for the child,

Town of Stettin v. Hoeppner, Appeal No. 2103AP1201, 3/11/14, District 3 (1-judge, ineligible for publication); case activity

The Hoeppners found themselves on the wrong side of an action seeking judicial enforcement of certain town ordinances.  When they settled the case, they stipulated to a finding that they were in contempt and to the conditions they had to perform in order to purge the contempt.  Then they failed to purge their contempt,

State v. Mario Emmanuel James, 2013AP309-CR, District 1, 3/11/14; court of appeals decision (not recommended for publication); case activity

James, charged with armed robbery, alleged trial counsel was ineffective based on various alleged omissions, including the following:

• Failing to object to evidence that the victims of the robbery identified James from a photo array based on the claim that it was a suggestive identification procedure because the police told the victims before they viewed the array that they had found the victims’

State v. Francisco Luis Canales, 2013AP1435-CR, District 1, 3/11/14; court of appeals decision (not recommended for publication); case activity

Though the state violated its discovery obligation by failing to disclose multiple computer-aided dispatch (CAD) reports describing 9-1-1 calls regarding the incident, the circuit court did not erroneously exercise its discretion in denying Canales’s motion for mistrial after the discovery violation came to light.

A mistrial is appropriate only when there is a “manifest necessity,” for “the law prefers less drastic alternatives,

State v. Mitchell M. Treiber, 2013AP2684-CR, District 3, 3/11/14; court of appeals decision (1-judge; ineligible for publication); case activity

The inevitable discovery doctrine, which provides that “evidence obtained during a search which is tainted by some illegal act may be admissible if the tainted evidence would have been inevitably discovered by lawful means,” State v. Lopez, 207 Wis. 2d 413, 427, 559 N.W.2d 264 (Ct.

State v. Nancy Jean Wall, 2013AP787-CR, District 4, 3/6/14; court of appeals decision (not recommended for publication); case activity

The prosecutor’s reference during opening statement that Wall’s BAC was over the legal limit of 0.02, despite a stipulation designed to keep that threshold from being referred to during trial, was not intended to provoke a mistrial. Therefore, the circuit court’s dismissal of the charges was erroneous.

Wall,

State v. Brian C. Beahm, 2013AP1678-CR, District 4, 3/6/14; court of appeals decision (1-judge; ineligible for publication); case activity

An 12- to 13-month delay between Beahm’s arrest and the filing of OWI charges did not violate his Sixth Amendment right to speedy trial.

Whether a defendant’s Sixth Amendment right to a speedy trial has been violated depends on: the length of the delay; the reason for the delay;

State v. Michael J. Adrian, Jr., 2013AP1890-CR, District 4, 3/6/14; court of appeals decision (1-judge; ineligible for publication); case activity

Transporting Adrian from the site his vehicle was stopped to the nearest police station for the purpose of performing field sobriety tests did not convert a lawful Terry detention into an illegal custodial arrest.

A person temporarily detained under Terry may be moved “in the general vicinity of the stop without converting what would otherwise be a temporary seizure into an arrest.” State v.

Marquette County v. Randy S. Tomaw, 2013AP1510, District 4, 3/6/14; court of appeals decision (1-judge; ineligible for publication); case activity

Tomaw was going 17 miles over the speed limit at 1:20 on a Sunday morning. He did not appear to respond to the officer’s initial attempt at contact, his upper body swayed as he walked to the rear of his vehicle, and the officer detected the “strong odor” of alcohol on his breath.