On Point blog, page 49 of 53
CCW – Constitutionality – Second Amendment
State v. Joshua D. Schultz, Clark County Case No. 10-CM-138, 10/12/10
Clark County circuit court decision; for Schultz: William Poss, SPD Trial, Black River Falls
The complaint in this matter alleges that on June 10, 2010, the defendant was carrying a concealed weapon, a knife in the waistband of his pants which was covered by his shirt. The State alleges this is contrary to section 941.23, Wis. Stats.
Richard M. Fischer v. Ozaukee Co. Circ. Ct., 741 F. Supp. 2d 944 (E.D. Wis. 2010)
federal habeas decision (pdf file: here), granting relief in State v. Fischer, 2010 WI 6; respondent’s Rule 59 motion to amend judgment denied 1/7/11
Habeas Review – Right to Present Defense – Expert Opinion, Based PBT
Preventing Fisher from adducing expert opinion he wasn’t driving with a prohibited alcohol content based on analysis of his PBT, because of the absolute evidentiary bar under § 343.303 on PBTs,
Probable Cause – Traffic Violation: Driving in Center Lane; Reasonable Suspicion – OWI
State v. Jerome Hoehne, 2009AP2561-CR, District 4, 9/15/10
court of appeals decision (1-judge, not for publication); for Hoehen: Bill Ginsberg; BiC; Resp.; Reply
Probable Cause – Traffic Violation: Driving in Center Lane
Driving in the center lane of a 3-lane highway did not support probable cause to arrest for a traffic violation:
¶8 On appeal,
Manipulation of Adult Jurisdiction over Juvenile Offense; Bail Jumping – Jurisdiction to Impose Conditions; Sanctions – Appellate Violations
State v. Drew E. Bergwin, 2010 WI App 137; for Bergwin: Roberta A. Heckes; BiC; Resp.; Reply
Manipulation of Adult Jurisdiction over Juvenile Offense
When the State brings a criminal charge against an adult defendant for an offense committed as a juvenile, the State must affirmatively show that the delay in charging wasn’t intended to manipualte the system to avoid juvenile court jurisdiction,
Recorded Confessions; Sentence Credit – Predisposition Secure Detention
State v. Dionicia M., 2010 WI App 134; for Dionicia M.: Andrew Hinkel, SPD Madison Appellate
Recorded Confessions
The juvenile was in custody when she was directed to the locked back seat of a patrol car so that she could be transported back to school after being reported truant; and, because it was feasible under the circumstances to record her ensuing statement, failure to do so rendered it inadmissible.
Judicial Bias – Sentencing after Revocation
State v. James Robert Thomas, No. 2010AP332-CR, District III, 7/27/10
court of appeals decision (1-judge, not for publication); for Thomas: Steven D. Phillips, SPD, Madison Appellate; BiC; Resp.; Reply
The sentencing court exhibited objective bias, requiring resentencing, when it imposed the maximum on sentencing after revocation, given the court’s threat when it placed Thomas on probation to do just that if his probation were revoked.
Habeas – Procedural default, Evidentiary hearing
Alan Ward v. Deppisch, 7th Cir No. 08-2809, 07/23/2010
7th circuit decision, review of unpublished court of appeals decision
Habeas – Procedural Default
The state argues that Ward procedurally defaulted his claim because he failed to fairly present the Wisconsin courts with a federal issue, and the state courts ruled against Ward based on adequate and independent state law grounds. We disagree. A review of Ward’s postconviction motion before the state court shows that he fairly presented a federal issue.
Evidence / IAC: Comment on Refusal to Provide DNA; Instruction: Recording Policy Interrogation; Impeachment: Prior Convictions
State v. Tarence A. Banks, 2010 WI App 107; for Banks: Scott D. Obernberger; BiC; Resp.; Reply
Evidence – Comment on Refusal to Provide DNA – Ineffective Assistance
Prosecutorial use of Banks’ refusal, after arrest, to provide a warrantless DNA sample penalized him for exercising a constitutional right. Because no contemporaneous objection was made, the issue is raised as ineffective assistance of counsel,
Venue: Instruction, Proof; Obstructing: Proof; Instruction: Recently Stolen Property
State v. Donald L. Schultz, 2010 WI App 124 (decision originally issued 7/20/10, subsequently withdrawn; reissued 8/17/10); for Schultz: Margaret A. Maroney, Steven D. Phillips, SPD, Madison Appellate; BiC; Resp.; Reply
Venue – Instruction
¶12 Although venue is not an element of a crime, it nonetheless must be proved beyond a reasonable doubt. State v.
Exclusionary Rule – Good-Faith Rule – Void ab initio Warrant
State v. Michael R. Hess, 2010 WI 82 affirming 2009 WI App 105; for Hess: George M. Tauscheck; BiC; Resp.; Reply
Exclusionary Rule – Good-Faith Rule – Void ab initio Warrant
¶2 We conclude that the good-faith exception to the exclusionary rule does not apply to a situation in which: (1) no facts existed that would justify an arrest without a warrant;