On Point blog, page 50 of 53
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7th circuit decision, review of unpublished court of appeals decision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State v. Donald L. Schultz, 2010 WI App 124 (decision originally issued 7/20/10, subsequently withdrawn; reissued 8/17/10); for Schultz: Margaret A. Maroney, Steven D. Phillips, SPD, Madison Appellate; BiC; Resp.; Reply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;
Traffic Stop – OWI
State v. Brittany A. Meye, No. 2010AP336-CR, District II, 7/14/10
court of appeals decision (1-judge, not for publication); for Meye: Kevin G. Keane; BiC; Resp.; Reply
¶6 Meye argues that the odor of intoxicants alone is insufficient to raise reasonable suspicion to make an investigatory stop. We agree. We will not cite, chapter and verse, all the many cases in this state where either we or our supreme court found facts sufficient for an investigatory stop.
Sentence Credit – Concurrent Sentence, Foreign Jurisdiction
State v. Patrick C. Carter, 2010 WI 77, affirming as modified, 2007 WI App 255; for Carter: Ellen Henak, SPD, Milwaukee Appellate
Carter is entitled to sentence credit for time spent in custody in Illinois following his arrest on an outstanding Wisconsin warrant along with an Illinois charge, given that the resultant sentences were concurrent.
Five different opinions, 238 paragraphs spread out over 116 pages (pdf file),
Confrontation – Limits on Cross-Examination
State v. Olu A. Rhodes, No. 2009AP25, District I, 7/7/10; reversed, 2011 WI 73
court of appeals decision (3-judge; not recommended for publication), reversed, 2011 WI 73; for Rhodes: John J. Grau; BiC; Resp.; Reply
¶10 A defendant’s “right to confront and to cross-examine is not absolute[,]” however, and “‘trial judges retain wide latitude … to impose reasonable limits.’” Id.
Guilty Pleas: Colloquy – Deportation
State v. Hou Erik Vang, 2010 WI App 118; for Vang: John L. Sesini; BiC; Resp.; Reply
¶1 Hou Vang appeals an order denying his motion to withdraw his no contest pleas to second-degree sexual assault of a child and felony bail jumping. Vang argues WIS. STAT. §§ 971.08(1)(c), (2)[1] entitle him to withdraw his pleas because, although the circuit court provided the statutory deportation warning at his arraignment,
Search-Incident: Automobile; Sufficiency of Evidence: Manufacturing THC
State v. Timothy Charles Bauer, 2010 WI App 93; for Bauer: Catherine M. Canright; BiC; Resp.; Reply
Search-Incident – Automobile
By failing to address Bauer’s Arizona v. Gant argument, instead relying solely on State v. Fry, 131 Wis. 2d 153, 174, 388 N.W.2d 565 (1986), the States’ argument compels the court to reverse the suppression order:
¶9 Here,
OWI – PAC: Timing of Countable Prior Convictions
State v. Brian K. Sowatzke, 2010 WI App 81; for Sowatzke: Andrew R. Walter; BiC; Resp.; Reply
¶13 Sowatzke had two countable OWI “convictions, suspensions or revocations” (i.e., he had two OWI convictions) at the time he was arrested on May 9; he had a BAC of 0.048 percent at the time he was arrested on May 9; his legal BAC limit was 0.08 percent at the time he was arrested on May 9.