On Point blog, page 52 of 89
Miranda – Custody; Lesser Included Offense Instruction
State v. Tony Lamont Jackson, 2010AP351-CR, District 1, 12/14/10
court of appeals decision (3-judge, not recommended for publication); for Jackson: Hans P. Koesser; Jackson BiC; State Resp.; Reply
Miranda – Custody
Initially treated at the scene of a shooting by the police as a witness rather than suspect, Jackson voluntarily accompanied the police to the station to continue providing information,
State v. Michael S. Henderson, Milwaukee Co. Circ. Ct. No. 10CF1101
circuit court decision (Judge Richard Sankovitz); for Henderson: Paul A. Ksicinski, SPD, Milwaukee Trial
Illegal Voting, § 12.13(1)(a) – Voting Rights Acts
Henderson is charged with illegal voting because he allegedly voted notwithstanding his status as a felon still under supervision (which would made him ineligible to vote). He raises as a defense the Voting Rights Act of 1965, 45 U.S.C. § 1973(a): the Act bars disenfranchisement “on account of race”
OWI – § 346.65(2), Second or Subsequent Offense: Out-of-State Administrative Non-Refusal (“Zero Tolerance”) Suspension
State v. Gerard W. Carter, 2010 WI 132, reversing 2009 WI App 156; for Carter: Craig M. Kuhary; State BiC; Carter Resp.; Reply
Prior DL suspension under Illinois’ “zero tolerance” law (which suspends or revokes operating privileges of drivers under legal drinking age with any alcohol concentration) satisfies § 343.307(1)(d) and therefore supports OWI enhancement,
§ 944.20(1)(a), Lewd & Lascivious
State v. Andrew J. Bolin, 2009AP2425-CR, District 4, 11/24/10
court of appeals decision (1-judge, not for publication)
The crime of lewd and lascivious behavior applies to non-consensual as well as consensual acts with another.
¶9 The language at issue is unambiguous as applied to the facts in this case. The subsection prohibits “an indecent act of sexual gratification with another with knowledge that they are in the presence of others.” WIS.
Sex Offender Registration Requirement Where Homeless
State v. William Dinkins, Sr., 2010 WI App 163, review granted 3/16/11; for Dinkins: Steven D. Phillips, SPD, Madison Appellate; Dinkins BiC; State Resp.; Reply
A prisoner subject to sex offender registration requirement, § 301.45, isn’t subject to criminal penalty for failing, on impending release, to notify authorities of his intended “residence” where he will be homeless.
Multiplicity: § 948.40(1) (4)(a) as Lesser of § 940.02(2)(a); Contributing to Delinquency with Death as Result; Instructions – First-Degree Reckless Homicide; Prosecutorial Misconduct – “Haseltine”
State v. Patrick R. Patterson, 2010 WI 130, affirming 2009 WI App 181; for Patterson: David R. Karpe; Patterson BiC; State Resp.; Reply
Multiplicity – § 948.40(1) (4)(a) as Lesser Offense of § 940.02(2)(a)
Contributing to the delinquency of a minor with death as a result, § 948.40(1), (4)(a) is not a lesser offense of first-degree reckless homicide,
Unlawful Use of Phone – Sufficiency of Evidence; Best Evidence Rule; Citation of Unpublished Caselaw
State v. Kurt Daniel Schmidt, 2010AP1104-CR, District 3, 11/16/10
court of appeals decision (1-judge, not for publication); for Schmidt: Andrew John Laufers; Schmidt BiC; State Resp.; Reply
Unlawful Use of Phone – Sufficiency of Evidence
Evidence held sufficient to sustain conviction for violating § 947.012(1)(c). The second of two calls anonymously made by Schmidt in a matter of minutes to his wife during a pending divorce with custody in dispute,
OWI – Refusal
State v. Robert J. Ruggles, 2010AP1587, District 2, 11/3/10
court of appeals decision (1-judge, not for publication); for Ruggles: Robert C. Raymond; BiC; Resp.
A driver doesn’t have a constitutional right to be informed that a blood draw could be performed without his consent.
¶9 It is well established that there is no constitutional right to refuse a request for a chemical test.
Curative Instruction; Theft by Fraud – Sufficiency of Proof
State v. Lea B. Kolner, 2010AP1233-CR, District 3, 11/2/10
court of appeals decision (1-judge, not for publication); for Kolner: R. Michael Waterman; BiC; Resp.; Reply
Curative Instruction
Any impropriety in the prosecutor’s opening statement (alleged comment on right to silence) was presumptively cured by the trial court’s instruction to disregard the entire opening statement.
¶11 Not all errors warrant a mistrial,
Probable Cause – OWI Arrest
State v. Michael A. Barahona, 2010AP1324, District 4, 10/21/10
court of appeals decision (1-judge, not for publication); for Barahona: Walter A. Piel, Jr.; BiC; Resp.; Reply
¶14 The undisputed facts as disclosed from the record reveal the following: (1) Marks observed Barahona’s vehicle driving in the wrong direction in the eastbound lane of Campus Drive; (2) Marks observed Barahona’s vehicle cross the dotted line dividing two lanes of traffic by approximately one foot and drive over that line for approximately one block when he was pulled over by Marks;