On Point blog, page 84 of 87
Hit-and-run – public premises
State v. Lisa A. Carter, 229 Wis. 2d 200, 598 N.W.2d 619 (Ct. App. 1999)
For Carter: Paul G. LaZotte
Holding: Hit-and-run, § 346.67, applies to “premises held out to the public for use of their motor vehicles.” The event occurred at a closed gas station; the court holds the element satisfied: ” … The premises is bordered by two city streets and abuts an alley in the rear.
OWI – implied consent law, application where driver not under arrest
State v. Jack E. Thurk, 224 Wis.2d 662, 592 N.W.2d 1 (Ct. App. 1999)
For Thurk: Christopher A. Mutschler
Holding: Following a vehicular homicide the culpable driver voluntarily accompanied an officer to the station and submitted to a chemical blood test. He seeks suppression, on the ground that he was denied a request for a breathalyzer as an alternate test. The COA rejects the argument, holding that he had no right to the alternate test because he wasn’t under arrest.
OWI – Implied Consent Law – Right to Counsel
State v. Dennis J. Reitter, 227 Wis.2d 213, 595 N.W.2d 646 (1999), on certification
For Reitter: Michael C. Witt, Monogue & Witt, S.C.
¶3 … where a defendant expresses no confusion about his or her understanding of the statute, a defendant constructively refuses to take a breathalyzer test when he or she repeatedly requests to speak with an attorney in lieu of submitting to the test. We also hold that because the implied consent law creates statutory privileges,
Attempt, § 939.32 — intended victim’s refusal to submit
State v. Gabriel DeRango, 229 Wis.2d 1, 599 N.W.2d 27 (Ct. App. 1999), affirmed on other grounds, State v. Derango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 83
For DeRango: Robert G. LeBell
Holding: The evidence was sufficient, largely because the complainant’s refusal to go along with DeRango’s scheme constituted intervention of another person, so as to satisfy the attempt statute.
§ 940.01, Intentional Homicide — definitions – “human being” – fetus
State v. Deborah J.Z., 228 Wis.2d 468, 596 N.W.2d 490 (Ct. App. 1999), affirmed by equally divided vote, 225 Wis.2d 33, 590 N.W.2d 711 (1999)
For Deborah J.Z.: Sally Hoelzel
Holding: An unborn child is not a “human being” under the controlling definition in § 939.22(16), and the defendant therefore can’t be charged with attempting to kill and injure her fetus by excessive drinking during her pregnancy.
§ 940.02, First-degree reckless homicide — utter disregard for human life — sufficiency of evidence
State v. Audrey A. Edmunds, 229 Wis. 2d 67, 598 N.W.2d 290 (Ct. App. 1999)
For Edmunds: Dean A. Strang
Holding: “Utter disregard for human life,” an element of first-degree recklessness, derives from the old second-degree (depraved murder) statute. It imposes an objective test. Therefore, in this shaken baby death, it’s irrelevant whether Edmunds had “personal knowledge that vigorously shaking a twenty-two pound infant could subject her to the risk of serious injury”: a reasonable person would have known of the risk.
§ 940.10, Negligent Homicide by Operation of Vehicle — elements — objective standard for negligent conduct
State v. Derrick D. Johannes, 229 Wis. 2d 215, 598 N.W.2d 299 (Ct. App. 1999)
For Johannes: Gregory A. Petit
Holding: Johannes was convicted of several counts related to criminally negligent operation of a vehicle. The state’s theory was that Johannes crossed a centerline when he either fell asleep or played with a stereo. He now argues that the state had to prove that he knew that such conduct would cause him to cross the centerline.
§ 940.19(1), Battery – causing bodily harm, splashed with urine.
State v. Charles Dante Higgs, 230 Wis.2d 1, 601 N.W.2d 653 (Ct. App. 1999)
For Higgs: Joseph E. Redding
Issue: Whether splashing the victim’s face with urine satisfies the battery element of bodily harm.
Holding: The mere fact that urine struck the victim’s face isn’t enough to establish bodily harm, but the victim’s testimony that he felt stinging and burning satisfied the element.
§ 943.23(1r), Carjacking: Operating Vehicle Without Owner’s Consent Resulting in Death — Sufficiency of Evidence, Causation
State v. Earl L. Miller, 231 Wis.2d 447, 605 N.W.2d 567 (Ct. App. 1999)
For Miller: Eduardo M. Borda
Issue: Whether an act may satisfy the “substantial factor” test for causation element if it merely plays a prominent rather than lone role in the proscribed result.
Holding: Causation is satisfied by any significant, not necessarily the sole, factor resulting in death.
Miller was convicted of operating a vehicle without owner’s consent resulting in death (carjacking),
§ 943.32, Armed Robbery – sufficiency of evidence
State v. Keith Jones, 228 Wis.2d 593, 598 N.W.2d 259 (Ct. App. 1999)
For Jones: Edward J. Hunt
Holding: In the course of making their get-away, Jones’s shoplifting codefendant allegedly threatened Shogren, a pursuing guard. Notwithstanding the codefendant’s acquittal, Jones’s conviction for armed robbery is sustained against a sufficiency of evidence challenge.
Here, there was sufficient evidence to convict Jones. That the jury acquitted Patterson does not necessarily mean that it discounted Shogren’s testimony.