On Point blog, page 22 of 29
State v. Jon Anthony Soto, 2010AP2273, review granted, 6/15/11
on certification; for Soto: Shelley Fite, SPD, Madison Appellate; case activity; prior post
Issues (composed by On Point):
Whether a defendant has a non-waivable right to be physically present at a §§ 971.04(1)(g) and 885.60.
If the right to physical presence at the plea proceeding can be waived or forfeited, whether a formal colloquy is nonetheless required before the defendant enters a plea via video conferencing.
Barion Perry v. New Hampshire, USSC No. 10-8974, cert granted 5/31/11
Decision below: New Hampshire Supreme Court, No. 2009-0590, 11/18/2010 (summary order); Perry’s brief below; New Hampshire’s brief below
When a witness in a criminal case identifies a suspect out-of-court, under suggestive circumstances which give rise to a substantial likelihood of later misidentification, due process requires the trial judge to determine whether the out-ofcourt identification and any subsequent in-court identification are reliable before either may be admitted into evidence.
Newly Discovered Evidence; In Camera Inspection, Psychological Treatment Records; Evidence – Restriction on Expert Testimony
State v. Crystal P. Keith, 2010AP1667-CR, District 1, 5/24/11
court of appeals decision (not recommended for publication); for Keith: John A. Pray; case activity
On Keith’s conviction for reckless homicide in beating death of foster son, statements of her biological daughter (such as, “Why does mama have to go to jail for what my daddy did”) didn’t satisfy the test for newly discovered evidence. Keith’s confession to the police “was so detailed”
State v. Jon Anthony Soto, 2010AP2273-CR, District 3, 5/17/11, affirmed 2012 WI 93
certification; for Soto: Shelley Fite, SPD, Madison Appellate; case activity, circuit court affirmed 2012 WI 93
Plea Procedure – Personal Presence
We certify this appeal to the Wisconsin Supreme Court to determine whether Jon Soto’s statutory right to be physically present during a plea hearing was violated when the judge conducted the hearing through video teleconferencing and whether this issue was properly preserved.
Consent to Search: Co-Tenant; Counsel: Request for Substitute; Personal Presence: Forfeiture by Misconduct; Right to Testify: Waiver; Judicial Bias: Lapse in Decorum
State v. Calvin Jerome Pirtle, 2011 WI App 89(recommended for publication); for Pirtle: Christopher J. Cherella; case activity
Consent to Search – Georgia v. Randolph
Pirtle’s failure to object to the police presence allowed them to act on the co-tenant’s consent to a warrantless search under Georgia v. Randolph, 547 U.S. 103 (2006):
¶15 In Randolph,
Right to Present Defense – Hearsay Testimony; “Shiffra” Disclosure; Judicial Bias
State v. Bryan Peter Leather, 2010AP354-CR, District 1, 4/5/11
court of appeals decision (not recommended for publication); for Leather: Rex Anderegg; case activity
Leather argues he was entitled to call the prosecutor as a witness to testify about the complainant’s hearsay statements to her. The 6th amendment right to present a defense (confrontation and compulsory process) isn’t absolute and in particular doesn’t extend to irrelevant evidence. The offer of proof in support of admissibility shows that the complainant’s statements to the prosecutor weren’t inconsistent with her testimony,
Stalking, § 940.32: Notice of Charge, “Course of Conduct” / Elevation from Class I to H Felony Status
State v. Janet A. Conner, 2011 WI 8, affirming 2009 WI App 143; for Conner: Stephen E. Mays; case activity; Conner BiC; State Resp.; Reply
Stalking, § 940.32 – Notice of Charge, “Course of Conduct”
Stalking requires proof of, among other elements, a “course of conduct” which “means a series of 2 or more acts carried out over time,
State v. Joseph J. Spaeth, 2009AP2907-CR, review granted 2/8/11
on certification; for Spaeth: Shelley Fite, SPD, Madison Appellate; case activity
Issue (formulated by On Point):
Whether a statement made to law enforcement following a probationer’s honest accounting to his probation agent may derive from a “legitimate source wholly independent of compelled testimony” and therefore admissible in a criminal case, notwithstanding the promise of immunity for such statements when made to probation agents.
See prior post for further discussion.
Right to Present Defense – Prosecutorial Intimidation of Witness; Comment on Guilt
State v. Jevell Williams, 2010AP1266-CR, District 1, 2/1/11
court of appeals decision (3-judge, not recommended for publication); for Williams: Bradley J. Wochowicz; case activity; Williams BiC; State Resp.; Reply
Right to Present Defense – Prosecutorial Intimidation of Witness
The prosecutor didn’t violate Williams’s right to present a defense by raising the possibility that his alibi witness had potentially violated a no-contact order by contacting a State’s witness on Williams’s behalf.
Stun Belt: Necessity Irrelevant if not Visible to Jury
State v. Jason L. Miller, 2011 WI App 34; for Miller: Shelley Fite, SPD, Madison Appellate; case activity; Miller BiC; State Resp.; Reply
If the stun belt (or other restraint) isn’t visible to the jury, the trial court need not consider its necessity before requiring that the defendant wear it during trial. “Because there is no evidence that the jury could see the stun belt,