On Point blog, page 38 of 53
Wisconsin Supreme Court holds counsel in merit appeal may refer to PSI without asking permission from any court
In the Matter of State v. Michael Buchanan: State ex rel. Office of State Public Defender v. Wis. Court of Appeals, District IV, 2013 WI 31, on review of petition for supervisory writ; case activity
In an important decision for all lawyers who handle criminal cases in the state appellate courts, the supreme court affirms that counsel for the defendant and the state do not need permission from a court to use,
Rape Shield Law — prior sexual activity between defendant and complainant; relevance to fact in issue; probative value outweighing prejudice
State v. Muhammad Sarfraz, 2013 WI App 57, petition for review granted 9/17/13; case activity
The circuit court erroneously excluded evidence of prior sexual activity between Sarfraz and I.N., the complainant. She alleged Sarfraz, wearing a mask and saying he was the landlord, knocked on the door of her apartment, came in when she opened the door, and forcibly engaged in sexual intercourse with her.
New trial ordered due to erroneous evidentiary rulings that excluded school disciplinary records relevant to impeaching the complainant and admitted Haseltine-type evidence
State v. Gene A. Echols, 2013 WI App 58; case activity
Echols is entitled to a new trial on charges of child sexual assault because the trial court erred in prohibiting evidence relating to the complainant’s motive to fabricate the assault and in admitting testimony from Echols’s employer that he only stutters when he is lying.
Erroneous ruling excluding complainant’s school disciplinary records
A fifteen-year-old student alleged that Echols,
Jury – selection – “Batson” claim; prosecutor’s failure to provide neutral explanation for striking Native American juror
State v. Karen Lynn Snow, 2012AP2323-CR, District 4, 4/4/13; court of appeals decision (1-judge, not eligible for publication); case activity
Applying the three-part, burden shifting test for Batson claims, see State v. Lamon, 2003 WI 78, ¶28, 262 Wis. 2d 747, 664 N.W.2d 607, the court of appeals concludes the circuit court erred in rejecting Snow’s objection to the prosecutor’s peremptory strike of Whiteeagle,
Miranda custody; “private safety” exception to Miranda
State v. Corey J. Uhlenberg, 2013 WI App 59; case activity
Miranda custody
Uhlenberg was in “custody” during an interview at the police department, so the circuit court should have suppressed the statements Uhlenberg made during the interrogation after he requested an attorney:
¶11 Throughout its arguments, the State emphasizes the fact that the detective repeatedly told Uhlenberg that he was not under arrest.
Wisconsin Supreme Court: New fact-finding hearing before a jury is the proper remedy for erroneous grant of default judgment due to parent’s tardy appearance at second day of trial
Dane County DHS v. Mable K., 2013 WI 28, reversing court of appeals summary order; case activity
¶3 We conclude, and the circuit court has acknowledged, that it erroneously exercised its discretion when it entered a default judgment finding that grounds existed to terminate Mable K.’s parental rights after barring her attorney from offering additional evidence. It also erred when it granted the default judgment before taking evidence sufficient to establish the grounds alleged in the amended petitions.
Privileges — Confidential informant, § 905.10(3)(b) — sufficiency of information to trigger in camera review
State v. Jessica A. Nellessen, 2013 WI App 46, petition for review granted 10/15/13; case activity
Under the two-step procedure for determining whether a confidential informant’s identity should be disclosed, the court must first determine whether there is reason to believe that the informant may be able to give testimony “necessary to a fair determination of the issue of guilt or innocence.” If there is reason to so believe,
OWI — conviction for “first” offense must be vacated where defendant has prior OWIs despite delay in moving to vacate conviction and even though priors were from another state
Clark County v. Rex A. Potts, 2012AP2001, District 4, 3/28/13; court of appeals decision (1-judge, ineligible for publication); case activity
Potts’s 1996 conviction for OWI in violation of a county ordinance is void and must be vacated because defendant had prior convictions for operating while intoxicated—even though Potts did not move to vacate the judgment until 2012 and even though the prior convictions were from Massachusetts.
The circuit court rejected Potts’s motion for relief from the 1996 judgment because of his delay in bringing the motion,
Parked driver was seized when officer approached and directed him to roll down his window
Grant County v. Daniel A. Vogt, 2012AP1812, District 4, 3/14/13; court of appeals decision (1-judge, ineligible for publication), petition for review granted 10/15/13; case activity
Where police officer pulled up behind parked car without activating his emergency lights, approached the car, rapped on the window, and directed the driver to roll the window down, the driver was seized under State v.
Arrest and warrantless search of a home – no probable cause, exigent circumstances, community caretaker exception, or consent.
State v. Daniel Cervantes, 2011AP1858-CR, District 1, 2/12/13; court of appeals decision (not recommended for publication); case activity
The police lacked probable cause to arrest Cervantes when he opened the door of his apartment (¶¶10-16); there were neither exigent circumstances nor community caretaker grounds for the police to enter Cervantes’s apartment following his arrest to do a protective sweep (¶¶14-23); and his subsequent “consent” to search the apartment was not sufficiently attenuated from the illegal arrest and entries (¶¶24-30).