On Point blog, page 224 of 262
Shiffra-Green Procedure – Privileged Records – Remedy
State v. Samuel Curtis Johnson, III, 2011AP2864-CRAC, District 2, 4/18/12, WSC rev granted 11/14/12
court of appeals decision (not recommended for publication), supreme court review granted 11/14/12; for Johnson: Mark D. Richards, Michael F. Hart, Craig S. Powell, Geoffrey R. Misfeldt; case activity
Shiffra-Green Procedure – Privileged Records – Remedy Where Witness Declines Consent for in Camera Review
Johnson, charged with sexual assault of his stepdaughter T.S.,
Carrying Concealed Weapon, § 941.23 (2009-10) – Facially Constitutional; Constitutional, as Applied; Defense of Coercion, § 939.46(1)
State v. Clarence E. Brown, 2011AP2049-CR, District 1, 4/17/12
court of appeals decision (1-judge, not for publication); for Brown: Daniel R. Drigot; case activity
Carrying Concealed Weapon, § 941.23 (2009-10) – Facially Constitutional
The court upholds the constitutionality of the prior version of § 941.23, CCW, as not violating the right to bear arms (since-modified, to allow conceal-carry under specified circumstances, 2011 WI Act 35).
Traffic Stop – 911 Call
State v. Michael L. Frank, 2011AP2306, District 3, 4/10/12
court of appeals decision (1-judge, not for publication); for Frank: Robert A. Kennedy, Jr.; case activity
Information, provided by a 911 caller reporting observations about Frank’s erratic driving, provided a basis for a lawful stop.
17 In this case, we conclude that Judge lawfully stopped Frank based on Shatzer’s tip.[3] A police officer may conduct a traffic stop if the officer has probable cause to believe a traffic violation has occurred or if the officer has reasonable suspicion,
§ 974.06 Motion – Custody Requirement; OWI – Enhancer
State v. David D. Austin, 2011AP1042, District 1, 4/10/12
court of appeals decision (1-judge, not for publication); pro se; case activity
Because Austin was no longer in custody under the conviction he sought to collaterally attack pursuant to § 974.06, the court lacked jurisdiction to entertain his motion. It is not enough that he was in custody under some sentence, rather than the particular conviction he sought to attack:
¶12 Austin submits that the wording of Wis.
Double Jeopardy – Mistrial over Objection – “Manifest Necessity”
State v. Levi Alexander Rodebaugh, 2011AP2659-CR, District 4, 4/5/12
court of appeals decision (1-judge, not for publication); for Rodebaugh: Bryon J. Walker; case activity
Grant of mistrial was unsupported by “manifest necessity,” hence was an erroneous exercise of discretion, where the complainant failed to show for trial and couldn’t be quickly located. Retrial is therefore barred as a matter of double jeopardy:
¶9 After Rodebaugh’s jury was sworn and jeopardy attached,
Exculpatory Evidence – Police Personnel Records; Postconviction Procedure – Serial Litigation Bar: Supplement to Still-Pending Motion
State v. Christopher J. Anderson, 2009AP3053-CR, District 1, 3/27/12
court of appeals decision (not recommended for publication); pro se; case activity; prior history: 2008AP504-CR
Anderson’s prior appeal established that “the trial court erred when it denied his request for an in camera review of [police] personnel files because he had both a constitutional and statutory right to any exculpatory or impeachment evidence in the files,”
Traffic Stop – Duration – Dog Sniff
State v. Dawn M. Fletcher, 2011AP1356-CR, District 3, 3/27/12
court of appeals decision (1-judge, not for publication); for Fletcher: Earl J. Luaders, III; case activity
The court upholds search of a car following a drug dog alert which occurred while an officer was still processing a warning ticket for a conceded traffic violation:
¶7 On appeal, Fletcher concedes the initial stop was lawful. She argues the dog sniff was illegal because the officer had no reasonable suspicion to detain the occupants of the vehicle to request a dog sniff.
TPR – Closing Argument, GAL – Ineffective Assistance of Counsel
State v. Corrine J., 2011AP1916 / State v. Dalvin C., Sr., 2011AP1882, District 1, 3/27/12
court of appeals decision (1-judge, not for publication); for Corrine J.: Melinda A. Swartz, SPD, Milwaukee Appellate; for Dalvin C.: Jeffrey W. Jensen; case activity
Trial counsel’s failure to object to the guardian ad litem’s closing argument wasn’t prejudicial, given the strength of the case for terminating parental rights. (The argument, merits of which the court doesn’t reach,
TPR – Default; TPR – Right to Present Evidence
State v. Laura M., 2011AP2828, District 1, 3/27/12
court of appeals decision(1-judge, not for publication); for Laura M.: Russell D. Bohach; case activity
The trial court properly exercised discretion in finding Laura M. in default when she failed to appear for trial on TPR grounds. A father of one of her children, Padrein K., called counsel to report that he had been stabbed and that Laura M.
Sentencing Discretion
State v. Scott P. Wojcik, 2011AP2568-CR, District 2, 3/21/12
court of appeals decision (1-judge, not for publication); for Wojcik: Christopher Lee Wiesmueller; case activity
90-day jail sentence for OWI-2nd (minimum 0f 5 days, maximum of 6 months) upheld as proper exercise of discretion. Trial court considered as aggravators recentness of prior OWI conviction (2008) and his seeming level of impairment (stumbled on getting out of car); and stressed deterrent purpose of sentence.