On Point blog, page 4 of 7
Double Jeopardy – Multiplicity: Bail Jumping – Single Bond, Same Condition but Different Cases
State v. Dana Eaglefeathers, 2009 WI App 2, PFR filed 1/9/09
For Eaglefeathers: Patricia A. Fitzgerald
Issue/Holding: Violation of the same condition in a single bond applicable to two different cases (failure to appear at both preliminary hearings scheduled for the same time and court) supports multiple bail jumping charges:
¶8 The parties do not dispute that the offenses charged against Eaglefeathers are identical in law;
Obstructing, § 946.41 – “Incomplete” Instruction, “Lawful Authority” – Harmless Error
State v. Kelly R. Ferguson, 2009 WI 50, reversing unpublished opinion
For Ferguson: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: Where it was clear not only that Ferguson obstructed the police outsideher apartment but also that the jury so found, arguable omission of a “complete” instruction on whether the police acted with lawful authority in entering her apartment was harmless:
¶43 The jury instruction here was a correct statement of the law for police actions outside of Ferguson’s home.
Obstructing, § 946.41 – “Lawful Authority” – Jury Instruction, Generally
State v. Kelly R. Ferguson, 2009 WI 50, reversing unpublished opinion
For Ferguson: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶31 Because “lawful authority” is an element of obstruction under Wis. Stat. § 946.41(1), if the jury was not properly instructed on the meaning of “lawful authority,” given the facts presented to the jury, the circuit court erred.See Harvey,
Bail-Jumping, § 946.49(1)(a) – “Release from Custody” – Cash and Recognizance Bonds Support Bail Jumping
State v. Travis S. Dewitt, 2008 WI App 134, PFR filed 8/19/08
For Dewitt: William E. Schmaal, SPD, Madison Appellate
Issue: Whether someone simultaneously held under personal recognizance and cash bonds can be guilty of bail jumping for acts committed in the jail.
Holding:
¶12 … Wis. Stat. § 946.49 provides that someone who “having been released from custody under [Wis.
Obstructing or Resisting Warden, § 29.951 – Single Crime with Multiple Modes of Commission – Unanimity not Required
State v. David A. Dearborn, 2008 WI App 131, affirmed, 2010 WI 84, ¶2 n. 3
For Dearborn: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: Unanimity is not required on whether the defendant “resisted” or “obstructed” a warden on a charge of violating § 29.951, ¶¶21-42.
All the rest is commentary. (Translated: the court undertakes a lengthy analysis that won’t be summarized.) Of particular note,
Jury Instructions – Conclusive Presumptions – Misconduct in Public Office, § 946.12(3), Elements of Duty and Intent
State v. Sherry L. Schultz, 2007 WI App 257; prior history: State v. Scott R. Jensen, 2004 WI App 89, affirmed, 2005 WI 31
For Schultz: Stephen L. Morgan, Jennifer M. Krueger
Issue/Holding: Jury instructions on the elements of duty and intent under § 946.12(3) created mandatory conclusive presumptions:
¶10 Schultz contends that the following sentences in the jury instruction given by the trial court operated as mandatory conclusive presumptions on the issues of intent and duty: “The use of a state resource to promote a candidate in a political campaign or to raise money for a candidate provides to that candidate a dishonest advantage” (establishing the intent element);
Bail-Jumping, § 946.49(1)(a) – Reversal of Conviction on Which Offense Premised
State v. David Richard Turnpaugh, 2007 WI App 222
For Turnpaugh: David P. Geraghty, Michael Sosnay
Issue/Holding: Reversal of the conviction for the crime on which the bail-jumping “was premised” also requires reversal of the bail-jumping conviction, ¶8.
This isn’t to say that bail-jumping requires >conviction on the underlying offense, see, e.g., State v. Kelley L. Hauk, 2002 WI App 226,
Stop – Basis – Reasonable Suspicion, “Evasion and Flight”
State v. Charles E. Young, 2006 WI 98, affirming 2004 WI App 227
For Young: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: Refusal to obey an officer’s command to halt reinforces extant reasonable suspicion to stop the individual:
¶73 Officer Alfredson testified that after he ordered Young to return to the car the first time, Young “turned and started walking away.”
Resisting, § 946.41 – “Lawful Authority” – Initially Unlawful Act by Police Doesn’t Preclude Conviction for Defendant’s Subsequent Conduct
State v. Anna Annina, 2006 WI App 202
For Van Hout: Robert R. Henak
Issue/Holding: Although police entry into the defendant’s house was pursuant to a search warrant later declared to be invalid, the defendant’s acts in response to that entry amounted to disorderly conduct which did allow for an arrest under lawful police authority; defendant could therefore be convicted for resisting a lawful arrest for disorderly conduct,
Obstructing / Resisting, § 946.41 – “Lawful Authority,” Established by Probable Cause to Arrest
State v. Charles E. Young, 2006 WI 98, affirming 2004 WI App 227
For Young: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: By fleeing from a police command to stop, the defendant provided probable cause to arrest for obstructing, and the officer therefore was acting with “lawful authority” under § 946.41(1), ¶¶77-78.
Also see U.S. v. Muhammad,